COVID-19 whistleblower attacks have stirred controversy on whether whistleblowing is a right or duty. Following some unusual working practices and changing guidelines necessitated by the global pandemic, many workers have been exposed to unsafe working conditions whereas some individuals, groups and organisations are exploiting the chaos to enrich themselves with fraud. COVID-19 whistleblowers (as defined previously) shared concerns through internal and external channels and many of them were victimized. Sadly, whistleblower protection laws and prosecution systems across the world are either silent on critical corporate governance and human rights matters or brazenly selective of ‘matters of high interest.’
Dr Li Wenliang became a folk hero after speaking up against the Chinese government’s suppression of the coronavirus (SARS-CoV-2) outbreak. The World Health Organization (WHO) in May 2020 coerced Dr Zambon, a public health whistleblower, into taking down his online publication on Italy’s handling of the devastating COVID-19 virus. The lead researcher alleged that he suffered retaliatory treatment and undue influence from WHO Assistant Director-General, Dr Ranieri Guerra, in defense of the scientific integrity of his research findings. With intimidations and conflict of interest from Dr Guerra, the victim was subdued and forced to delete factual findings from the article (“An unprecedented challenge; Italy’s first response to COVID-19”) published on WHO website. Whitleblower.Org on 26 May 2021 garnered support from global rights organisations and demanded a formal apology to Dr Zambon. More importantly, Whistleblower.Org unequivocally called for an independent review of the disclosures made by Dr Zambon to ensure that WHO takes responsibility to reform its whistleblowing mechanisms.
The Government Accountability Project[1], thus, made suggestions on how to consolidate independence of WHO’s justice system for the protection of potential whistleblowers working in the global institution[2]. In Santa Monica, California (USA), 10 nurses working at Providence Saint John’s Health Centre were forcefully placed on administrative leave for protesting use of surgical masks instead of N95 masks while treating COVID-19 patients. The nurses were suspended with full wages even though the hospital administrators knew surgical masks reportedly provide less respiratory protection.
The Council of Europe Group of States against Corruption (GRECO) showed concern on the increased risk of corruption during COVID-19 and in its response published specific guidelines that underscored the need for improved whistleblower protection laws. Particularly, to ‘facilitate and protect whistleblowers irrespective of the reporting lines’ used in making disclosures. GRECO highlighted the crucial roles played by whistleblowers risking their lives to protect the public interest during this global crisis. Yet, PIDA failed to protect UK whistleblowers, and not only that, allowed employers to freely take retaliatory actions. And evidence-based studies show there are no strong and financially-efficient structures to ensure that whistleblower concerns are properly addressed in EU Member States. Besides, the legislations (PIDA and EU Whistleblower Directives) revolve around a culture that supports covering up of wrongdoing[3]. The US government was also passive in response to ‘hotlines’ and protection from reprisal attacks. More importantly, the US whistleblowers lack credible rights required by to prevent more waves of fraud, save lives from the virus, and institutionalize good corporate government even in foreign affairs. Most EU Member Countries also lack strong whistleblowing laws in both public and private sectors. Thus, Snowden, Chelsea and Wikileaks examples are a reflection of whistleblowers incapacitation and vulnerability around the world[4].
There is a tendency in whistleblowing legislations, procedures and policies to use workers as a tool for consolidating organisational legitimacy. But it is deceitful and morally wrong for the legislations to view consequences and risks of whistleblowing from the angle of an acceptable end (sacrifice) rather than a right that should be protected. A large number of internal whistleblowing policies use wording which shows that raising a concern is compulsory and employees might be held accountable for failing to do so.
Whistleblowing legislations are established to protect individuals from various forms of reprisal attacks under specified conditions such as ‘reasonable belief’ and ‘the public interest.’ But the scope of protected disclosures varies among countries. However, one aim of internal whistleblowing policies and procedures is to avoid corporate liability that might arise from dealing inadequately with whistleblowers by providing internal channels for raising concerns. The study therefore examined whether or not explicit mention is made of retaliation and the protection of internal whistleblowers. Unfortunately, the courts investigate and rule on COVID-19 lawsuits using relevant sections of related provisions in national laws. And whistleblower protection legislations are yet to prioritize protection issues and revitalise internal reporting/investigation procedures.
It is worth noting that employee trust in a whistleblowing procedure is a major determinant factor on how it is utilized. The researcher therefore concludes that organisations should set up responsive internal reporting channels and implement a system which removes the fear of retaliation from employees and job seekers, as well as former employees. This will encourage individuals to share concerns through existing organisational guidelines with a sense of moral and ethical responsibility stronger than financial rewards from external sources.
However, filing a qui tam is not for the light-hearted. In addition to the stress and anxiety that arise from making a disclosure, qui tam cases are filed under court seal and this implies that the claimant is not allowed to disclose existence of the lawsuit to anyone. Another purpose of the seal is to allow the government covertly to investigate the allegations. And unless the government completes its investigation on the matter, the whistleblower is prevented from discussing the case with anyone, including family, friends or co-workers. This can be a difficult and harrowing experience associated with depression and feelings of isolation during the course of investigations. The situation gets worse because immediately investigations end, the qui tam case will eventually be unsealed and the whistleblower’s identity will be revealed to the public. The potential impact on the whistleblower’s employment, social activities, and entire life cannot be overemphasized.
Remarkably, it takes a long time, and in some cases, many years before qui tam and tax fraud lawsuits are resolved. The fact that results from such investigations are unpredictable makes whistleblowing a nightmare, too. In this regard, financial compensation for whistleblowers isn’t a bad idea after all.
Whistleblower suppression has spread like wildfire across the world. And whistleblower protection legislations are comparable to Trojan horses (traps) well-structured to expose ‘rebels’ without offering them absolute legal cover. A review of different national legislations shows that even the most promising laws are usually irrelevant. For example, 89% out of 37 countries whose whistleblower laws were passed before 2018 recorded less than 15 publicly reported legal decisions. A total of 22 countries had none and this is discouraging for potential whistleblowers. Notably, whistleblowers around the world won only 21% of disclosures whereas whistleblowers in the US won less than 10% in the period under review[5]. Countries with the best practice are Australia, the EU Whistleblower Protection Directive and the US. Others with the weak whistleblower protection laws are: Serbia (15/20), Ireland (14/20), Namibia (14/20) whereas Lebanon, Norway and Canada fall under countries with the weakest whistleblower protection laws—only matching one out of 20 criteria used in the Government Accountability Project research.
Although it is important for governments to do more to prevent the spread of misinformation, the importance of whistleblowers in corporate governance cannot be overestimated. The truth is: whistleblowing saves lives and resources. But it is totally unrealistic to expect that individuals can protect the public interest when they have no reliable legal shield covering them from employers’ retaliation. It is therefore necessary for governments to drastically reduce the growing influence of large, private organisations in order to make better decisions for the public good.
[1] Indira Anand, A. ‘Corporate Whistleblowing: Toward a Regulatory Approach’ (Emerald Publishing Limited: Bingley 2020) 241-260
[2] Whistleblower.Org ‘Open Letter to #WHA74: Support COVID-19 Whistleblower Dr. Zambon’ (2021) https://whistleblower.org/letter/open-letter-to-wha74-support-covid-19-whistleblower-dr-zambon/
[3] Council Directive 2019/1937 on the protection of reporting persons (2019) https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32019L1937
[4] The Council of Europe Group of States against Corruption (GRECO). https://rm.coe.int/corruption-risks-and-useful-legal-references-in-the-context-of-covid-1/16809e33e1
[5] Samantha F. et al (2021). Are whistleblowing laws working? A global study of whistleblower protection litigation. The Government Accountability Project, International Bar Association Legal Policy and Research Unit, Available at: https://whistleblower.org/wp-content/uploads/2021/03/Are-whistleblowing-laws-working-report-2021March.pdf
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