On the 7th of December 2020, William Bourdon (Lawyer and Founding Partner at Bourdon & Associés) gave his presentation within the Corporate Social Responsibility and Business Ethics Blog’s End-of-Year Seminar Series 2020 entitled “CSR, Whistleblowing and Human Rights” and organized by Dr. Costantino Grasso, Dr. Dawn Carpenter, and Dr. Luca d’Ambrosio. The series has been organised in partnership with the Centre for Financial and Corporate Integrity (CFCI) of Coventry University and the EU-funded research project VIRTEU (Vat fraud: Interdisciplinary Research on Tax crimes in the European Union – Grant Agreement no: 878619).
In his brilliant talk, William Bourdon discussed “Shall whistleblowers’ protection be extended?“
William Bourdon is an international leading lawyer in the area of white-collar crime. He has represented several whistleblowers such as Hervé Falciani (HSBC), Antoine Deltour (LuxLeaks), Rui Pinto (Football/Luanda Leaks), and is president of the Platform to Protect Whistleblowers in Africa.
Summary of the Seminar (by Stephen Holden)
William Bourdon begins by contextualising the rise of prominence of whistleblowers in recent history, and their impact. By understanding these turn of the century whistleblowers as ordinary people who went against the wishes of the organisations they belong to, resultant of the lack of protections and status recognition they often provoked the rule of law, leading to criminalisation.
This, William explains, raises an interesting question – namely, in the face of retaliation and criminalisation, why do whistleblowers persist in disclosing wrongdoing? This is done as they feel a societal and moral responsibility to reveal wrongdoing and provide accountability, and to prevent the slow creep of threats to personal liberty and trespass on freedoms by the state, for instance, the secretive extension of anti-terror laws or uncovering financial crimes.
By making this information public, usually through a proxy such as journalists, whistleblowers break the secrets that they were bound to keep when these secrets better serve vested interests as opposed to the interests of society.
William next takes the opportunity to contextualise the legal status of whistleblowers within a wider European framework. Many EU states do not have sufficient laws for recognition of whistleblower status or an appropriate system of protection, however, following the Luxleaks case these issues were considered by the European Court of Human Rights (ECHR). The ECHR ruled that under Article 10 of the European Convention on Human Rights, the right to freedom of expression, whistleblowers were to be afforded protected status when the disclosures impact the rights of citizens, and the information provided is critical for public debates and in the public interest.
This was not however without controversy. There remained many who believed that the first duty of an individual is to the law, and those disclosing information were simply criminals and should be treated as such.
The rise in reputation and awareness of whistleblowers, and the expansion of protections afforded to them, may not be simply considered altruistic but must be examined from the perspective of where the interests of the state and the interests of the whistleblower intersect. That is to say, during and following the global financial crisis in order to protect taxation and national revenues states took limited action to empower whistleblowers to make disclosures of financial crimes, tax evasion, and other harms.
Next, William considers the requirement for ‘good faith’ disclosures which often features in whistleblower legislation and regulations. It is explained this requirement can be problematic as it allows for a shift in focus from the alleged wrongdoing to the motivation of the whistleblower. Of importance has been the passage of the EU Whistleblowing Directive which will provide a minimum standard and homogony between the EU member countries. Critically, this directive has expanded the definition of whistleblowing from an understanding of employee, to encompass other interested parties with a sufficient level of proximity. The importance of this unity is contextualised against the Football Leaks and the criminal prosecution of Rui Pinto by the Portuguese authorities, highlighting that Pinto is recognised as both the subject of criminal proceedings while simultaneously being a protected witness.
Despite some progress, there still exists a significant problem when a person whistleblows against the secretive actions of state security services when they infringe or limit citizen rights, as can be seen in the case of Edward Snowden.
Finally, William highlights the problem of the lack of protection for the disclosure of professional secrets. Many wrongs can only be undertaken if facilitated by those who have a duty to maintain secrecy, for instance, lawyers, accountants, and auditors. There should be a recognised level of protection for these individuals.
Considering the next steps, William postulates the possibility of a worldwide system of unified protections for whistleblowers, however, he recognises this is a significant time off. Things are getting better in developing countries, but there remains work to do, especially across Africa, Latin America, and Asia.