In your day-to-day life, try to think of a situation when you had to prove what you said is true. Or when you had to prove you said something for the right reason. Or when you had to prove you were speaking with the right person. Or when you had to prove that the public should care about what you said.
Chances are, this has rarely if ever happened to you. You probably can’t imagine anyone actually being in such a situation – having to prove what they said and justify the reason.
Take it a step further. Imagine you were punished because you couldn’t successfully pass all of these tests.
If this sounds a bit strange, it should. But in the world of whistleblower protection, these tests are commonplace and widely accepted – even by many whistleblower advocates.
Bizarre as this might seem when compared to your daily life, most of the 50-some whistleblower laws in effect around the world require people to pass one or all of these tests. If they can’t pass them, they can be fired or suspended from their job, sued in civil court, or even criminally prosecuted and jailed. And there’s almost nothing they can do about it. They can lose their career or worse. Their victimizers simply walk away.
The widely held perception that a whistleblower should have to prove their allegations and be a person of sterling character has infused whistleblower laws with standards and expectations that hardly anyone can meet. It may sound very proper and logical on paper: if an employee wants to “go against the grain” and expose crime or corruption being committed within their company or organization, they’d better be right and be doing it for the right reasons. In real life, this burden is nearly impossible to overcome.
Ironically, while trying to protect speech, most whistleblower laws regulate speech. Not only do people lose their free speech rights, they are punished for trying to exercise them.
The results have been disastrous. People are being persecuted for reporting crimes. And the criminals not only get away with retaliating against witnesses, they often evade prosecution for the crimes reported by the witnesses. It’s a total perversion of our criminal justice system being enabled by whistleblower laws themselves.
How Whistleblower Laws Protect the Retaliators
Most of the world’s whistleblower laws – from South Africa to Sweden, and from Peru to Pakistan – contain onerous restrictions on free speech that usually result in witnesses being denied whistleblower status and being retaliated against with impunity.
As you read these restrictions, think about how they would interfere with your daily life and stifle what you are allowed say:
- People must have a “reasonable belief” that what they are saying is true. Proving this is impossible, in large part because “reasonable belief” has yet to be adequately or consistently defined by any law or legal standard.
- What people say must be in the “public interest.” The relevance of this test has never been adequately demonstrated. Proving it is impossible, in large part because “public interest” has yet to be adequately or consistently defined by any law or legal standard.
- People must be saying things in “good faith.” The relevance of this test has never been adequately demonstrated. Proving it is impossible, in large part because “good faith” has yet to be adequately defined or consistently by any law or legal standard.
- People first should report misconduct within their workplace, via so-called “internal channels.” This concept not only restricts free-speech rights, it is an invitation to intimidate witnesses, destroy evidence and cover up crimes.
Again, rather than protecting speech, these provisions restrict it. They control what you say, why you say it, and to whom you are permitted to say it. Nearly every whistleblower protection law therefore reaches the opposite: they establish rules and a framework that enable retaliation by placing impossible burdens on citizens.
It’s little wonder that so few people win their retaliation cases. Only 21 percent of people in 37 countries have prevailed in cases judged on their merits, according to “Are Whistleblower Laws Working?”, a 2021 study by the International Bar Association and Government Accountability Project.
Right now, countries around the world are passing new whistleblower laws that contain many or most of these harmful restrictions. At least eight new laws have been passed in Europe in the past year, and at least 15 more are being developed to comply with new EU rules. Rather than making speech more free, these laws are making it less free.
The Whistleblower’s Bill of Rights: Automatic Protection
Whistleblower protection is a new field. Many mistakes have been made as lawmakers and public officials have searched for the best ways to shield employees from retaliation. These growing pains have been felt by the wrong people. The people feeling the pain are not crooks and criminals, but the people who are doing the thing by turning them in.
Since these laws rarely function properly in real-life situations, the best solution is to make whistleblower protection automatic. This should be enshrined in a Whistleblower’s Bill of Rights, which would fundamentally change a broken system that very likely has done more harm than good.
According to the Bill of Rights, taking or threatening any harmful action against any employee who reports anything to anyone about any type of misconduct would be illegal. The people who commit retaliation – which is akin to witness intimidation – would be punished.
Any harmful actions taken against an employee would be immediately revoked, without the need for the victim to go to court. Retaliation victims promptly would be compensated for all damages, material and otherwise, and these damages would be tripled if the reprisals are egregious or sustained.
Under the Bill of Rights, people would not be required to “apply” for “whistleblower protection” or “status.” People would be automatically protected, by virtue of their inherent free speech rights. They would not have prove what they said is true, that they said it for the right reasons, and that the public should care about it.
No one is required to pass such tests in their day-to-day lives. Certainly, when we rely on citizens to report crimes that otherwise would remain concealed, we cannot stand in their way from doing the right thing.