New Report: Are Whistleblower Laws Working?

March 2, 2021 – Government Accountability Project – International Bar Association (pdf)

A new report, Are Whistleblowing Laws Working? A Global Study of Whistleblower Protection Litigation, tracks the records of whistleblower laws in 38 countries and provides an unprecedented effort to understand the successes and shortcomings of whistleblower protection legislation worldwide, following a proliferation of laws in recent decades. Co-published by Government Accountability Project and the International Bar Association (IBA) Legal Policy & Research Unit (LPRU), the report aims to support legislators, policy-makers and regulators in designing and developing normative, institutional and judicial frameworks that effectively protect whistleblowers in law – and in reality.

IBA President Sternford Moyo, senior partner and chairman of law firm Scanlen and Holderness in Zimbabwe, said:

“When whistleblowers report wrongdoings societies benefit. But generally, these courageous truth-tellers do not receive the protection that they should.  Putting aside the moral imperative, whistleblowers must be given the full protection of law. Today, there is no greater example of the need for such safeguarding than that of the COVID-19 pandemic. It has underscored both the importance and value of whistleblowers, as well as the risks they face. We should never forget the bravery of Dr Li Wenliang who tried to warn the world about the novel coronavirus and paid the ultimate price by losing his life. This new report shines a light on the efficacy of laws that are intended to protect and empower whistleblowers, demonstrates much more work is required and offers recommendations to shield the brave.”

Are Whistleblowing Laws Working? is the culmination of a two-year project begun in 2018 by a network of researchers from Government Accountability Project, the IBA LPRU and IBA membership. The research, undertaken in more than 20 languages, started with an examination of the strength of national laws on paper, compared with consensus international best practice. Reviews of the track record of these protections as demonstrated in case law followed, to assess whether the laws protected whistleblowers in practice. Although 48 – almost a quarter of the world’s countries – have a standalone, national whistleblowing law today compared to none in 1978, the report illustrates whistleblowers have too often found that rights which look impressive on paper offer minimal protection in practice.

Tom Devine, Government Accountability Project legal director and internationally renowned whistleblowing lawyer with more than four decades of experience advising whistleblowers explained:

“As countries around the world seek to enact new whistleblower laws or update existing ones, it is important to act on lessons learned for turning these rights into reality. While there was plenty of anecdotal evidence and some national-level research, Government Accountability Project and the IBA felt that we needed rigorous global data to understand what is working and what is not. We are immensely proud of this exhaustive research.”

Samantha Feinstein, Government Accountability Project staff attorney and deputy director of the International Program said:

“We found that in most jurisdictions the laws are underused. Where there have been cases, whistleblowers experience a poor success rate. In the few instances where they do succeed, whistleblowers are typically awarded meagre compensation. On this basis we make a number of recommendations for legislators and regulators, including greater transparency and ongoing review of these laws. Governments should prioritize public education to address underlying cultural stigma and ensure those who speak up know their rights.”

The report’s core recommendation is to draft laws that reflect global best practices and implement them in good faith. However, the report also notes that best practice laws will be ineffective without public support for/oversight of these rights, and that that is not possible without transparency and education. The report’s five key recommendations are:

  • Countries should publish case decisions online within searchable databases
  • Governments should publish reports with consolidated information about the impact of whistleblower laws to benefit society
  • Laws should remove economic barriers for whistleblowers challenging retaliation
  • All national whistleblower laws should include a periodic review of the laws’ effectiveness
  • Bias and discrimination should be addressed through intensive public education and training

In December 2019, European Union Directive 2019/1937 on the protection of persons who report breaches of Union law entered into force. Also known as the ‘Whistleblowing Directive’, its purpose is to guarantee an EU-wide standard for the protection of whistleblowers. EU Member States must implement the Directive into national law by 17 December 2021; this will raise the number of countries with standalone national laws to more than 62.

The report’s foreword by Georgia Georgiadou, Deputy Head of the Unit on Fundamental Rights Policies in the European Commission’s Directorate-General for Justice and Consumers reads: “[T]he findings of this research are also particularly timely to support and inspire current work at the EU and national level with a view to ensuring the proper transposition of the EU Directive to maximize its effectiveness on the ground.”

It continues: “Even the most sophisticated protection regime can only be fully effective if the judicial and enforcement ‘ecosystem’ in which this regime is integrated supports such effectiveness. This is precisely the ‘blind spot’ which this empirical study seeks to address by taking a closer look at the reality of legal protection in the majority of countries that have in place standalone laws on whistleblower protection.”

The IBA has been at the forefront of global thought-leadership in relation to whistleblower protections regulation, with input from numerous IBA committees, including the IBA Anti-Corruption Committee, and has frequently engaged on whistleblowing issues with the European Union, Organization for Economic Co-operation and Development, World Bank Group, Business Twenty (B20), International Federation of Accountants and national justice ministries.

Kieran Pender, senior legal advisor with the IBA LPRU, said:

“This new report continues the IBA’s strong record in this important area of law. With its comprehensive international coverage, the report is testament to what is possible with the expertise of our truly global membership. We are extremely grateful to Government Accountability Project for their fruitful partnership on this important joint endeavor.”

Government Accountability Project is America’s premier whistleblower support organization, having helped more than 8,000 whistleblowers and been on the front lines for passage of three dozen whistleblower laws from local to national law in the United States, to international rights including the United Nations and 2019 EU Directive.

Mr. Devine commented:

“This report reflects 20 years research and oversight into the quality of whistleblower laws on paper, and their impact in reality. It would not have happened without our partnership with the IBA over the last two years. The gratitude is mutual.”