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?“
Speaker’s Bio
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.
Video Recording
I’m Manggala from Faculty Of Law UII, Indonesia
Yes, it is so true that 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.
Whistleblowers should be protected from the government because whistleblowers could open the gate of the main problem even it’s about narcotics, psychotropic drugs, transnational crimes, extraordinary crimes against state security, corruption and terrorism. So for me personally, whistleblowers should be given to the same rights of the persons that are “key witnesses” in cases that we face in court.
I am Rifaldi Adi Tama from the regular undergraduate program at the Faculty of Law of the Islamic University of Indonesia. I think the protection against whistleblowers needs to be extended, because whistleblowers are a party that easily gets threats from people who don’t like the report. From a legal point of view in my country, Indonesia itself has ratified the United Nations Convention Against Corruption (UNCAC) through Law Number 7 of 2006. Article 33 UNCAC provides a legal obligation for States Parties to provide protection for whistleblowers. The existence of a whistleblower is very important because in my opinion it can reveal hidden practices of corruption. The spirit of anti-corruption provides encouragement for whistleblowers to open up corrupt practices to law enforcers and the public. Because of their duties, whistleblowers in my opinion must be protected from all forms of retaliation. Indonesia itself already has Law Number 31 of 2014 concerning Amendments to Law Number 13 of 2006 concerning Protection of Witnesses and Victims which regulates the protection of whistleblowers in the Indonesian criminal law system.
Hi, I am Saida from the Masters in the Faculty of Law of the Islamic University of Indonesia, first of all, I agree with all your presentation materials regarding the problem of the lack of protection for disclosure of professional secrets. The United Nations Convention Against Corruption (UNCAC) is a source of whistleblower protection for all countries that enter or ratify it, but it is still unclear whether only for internal countries or between countries? and what does reportable corporate crime mean? is there a crime against society or the country or nature? In my opinion, there must be some specific rules regarding that, for an employee who reports a crime to be a crime for himself or a whistleblower that must be protected?
I’m Yasyfa Febriani from undergraduate international program in the faculty of law at Indonesia Islamic University.
I agree that the problem with whistleblowing is the fact that even with all of these laws and conventions worldwide that supposed to protect whistleblowers from harm, it’s still very hard to assure their safety. It is clear that whistleblowers most often than not are the first line of defence against corruptions, cover ups and unethical conduct in corporations and even governments, like in the case of Edward Snowden. I agree that whistleblowing acts can be perceived as violations of laws, but the fact is these whistleblowers are trying to do the right thing and trying to stop wrongdoings that can be harmful for a lot of people like in the case of Stefan Kruzewski in America but doing the right things somehow ruined their life. There needs to be a way to protect people who decide to be a whistlebower, a way to ensure their livehood and their lives in general.
Hi, my name Muhammad Kharis M from undergraduate program Faculty of Law in Islamic University of Indonesia.
I do agree if whistleblower protections are extended if they are necessary. Because of the important role played by whistleblowers in reporting crimes committed by legal entity. In Indonesia, a whistleblower will gets four rights and protections stipulated in the Supreme Court Circular Letter (SEMA) Number 4 of 2011 which adopts from the United Nations Convention Against Corruption in 2003. First, he get physical and psychic protection for whistle blowers and justice collaborators. Second, legal protection. Third, special treatments like he get separated place detention from the suspect or other defendant of the crime that is disclosed, and the last is he will get awards if whistleblower can reveal a big case.
I’m Khalif Raihan Sovano (18410385) from Islamic University of Indonesia / Universitas Islam Indonesia’s Regular undergraduate program. We already know there’s this silencing of a whistleblower or a doctor by authorities in china during the earlier stage of the pandemic. And it could have been possible for them to contain the virus before it spread like wildfire all around the globe. Could this be said as one of china’s attempt to avoid the general blaming of china for this pandemic-imminent disease whilst still prioritizing the total control of its population? And IF the chinese gov’t has been found guilty of this silencing, is there such a punishment for this scale of penalty? which brought the world to it’s knees (Economy, society, our lives in general, and even the lost of indefinite amount of souls due to this pandemic which is still counting)
Recently they have approved this new law to “protect” whistleblowers (I’m using quotation marks here because, we don’t really know what is happening behind the curtain especially when we’re talking about an highly enclosed government like what china currently has). Is it just me or this new law they’ve created seems kind of sketchy, and chinese people better keep their eyes peeled.
I’m Khoirul Ariwafa from Faculty of Law UII, Indonesia
Thank you for your nice article. In Indonesia, explicitly the rules regarding the protection of whistleblowers and justice collaborators stated in Article 10 of Law No. 13 of 2006 regarding Witness and Victim Protection Agency and Circular Letter of Supreme Court (SEMA) No. 4 of 2011 concerning the Treatment of Criminal Action Reporters (whistleblowers). The regulation regarding whistleblowers in the legal system in Indonesia has been carried out quite comprehensively but not well applied in the law enforcement process in Indonesia. The life of the whistleblower will never be an ideal one but it is possible to provide a number of basic protections. This is not simple a moral choice, although it is right that, where someone does take the risk of speaking out, the system has an obligation to them. Whistleblowers are essential, but they will only exist if they have reason to believe that they will be protected. As for the forms of protection that can be provided to whistleblowers, among others are protection for the safety of their personal, family and property; and even got a new identity; find a new residence and / or receive temporary living expenses until the end of the protection period.
In my opinion, the implementation (application) of whistleblowers needs to be further socialized and refined so that more and more whistleblowers emerge who really dare to reveal an alleged violation or criminal act that is rife especially in Indonesia.
I am Rifqi Ananda Gelora (18410081) from the regular undergraduate program at the Faculty of Law, Islamic University of Indonesia. From my point of view, i totally agree with the materials that you presented regarding the problem for disclosure of someone professional secret. The United Nation Convention Against Corruption or we know as UNCAC is one from many sources in the world for whistleblower protection. nevertheless, the main rule for whistleblowers is not mentioned in specific way and it cannot give a big guarantee for their safety. In one side, the act of whistleblowers can be assumed as violations of the law. but, on the other side the act of whistleblowers can make an easier way to solve the problem like in the case of Stefan Kruzewski. So, in my opinion the rule or the source for whistleblowers protection must be extended or enhanced so that there will be a legal certainty for them.
Hi, I am Fathia Nur Khusna from the Masters in Faculty of Law of the Islamic University of Indonesia. I argue that corporate need to develop a Whistleblowing System (WBS) that encourages someone to be open and report any irregularities committed by the corporates personnel that can result in losses to the corporate such as regulating position, authority, improper use of corporate finances, and other legal fraud. In this case the corporate must guarantee the confidentiality of identity and provide protection to the whistleblower. Reports that have been supported by sufficient initial evidence will be followed up for further investigation to determine whether a report is proven or not. The results of the investigation become the basis for Management to impose sanctions on the reported. WBS guarantees that each whistleblower can know the status of progress and follow up on the report.
The firm and consistent implementation of the WBS is one of the efforts to make a corporate have a strong perception that if it commits a deviation or violation of the law, the potential to be detected and reported is greater and if proven, the imposition of sanctions is a sure thing. This can prevent all corporate personnel from committing acts that are detrimental to themselves and the corporate.
Hello, my name is Indra Hafit Zahrulswendar and I’m one of the student of Master of Law Program in Universitas Islam Indonesia.
Whistleblowing is not an easy thing to do, there are a lot of chances that it will backfire not only to the whistleblowers but maybe to his or her family as well. If someone willing to do this, they have taken a lot of risks. The government have to protect their rights with absolute power, let alone if the whistleblowers can help the law enforcer to reveal a major corporate financial crime or maybe a major crime for certain country. I strongly agree with this extension of the whistleblowers’ protection, however whistleblowers played a big role to reveal a crime with so little evidence, furthermore whistleblowers have rights to be protected and to be fulfilled by the government. In Indonesia, whistleblowers fall into the witness category based on Article 1 Number 1 Law No. 31 Year 2014 about Witness and Victim Protection. I believe that in Indonesia the whistleblowers protection is not properly fulfilled yet, we need a special law about the protection of whistleblowers and justice collaborator because we need more people to become one of this but we know that they are too afraid to do it and we can afford to give them full protection with special law about the protection of whistleblowers so they will no longer be afraid to step forward. We can look into one of United Nations Office on Drugs and Crime publications about “Good Practices for The Protection of Witnesses in Criminal Proceedings Involving Organized Crime” as one of the guidelines to establish a special law about the protection of whistleblowers besides another countries’ law that have been successfully uphold the protection of whistleblowers.
Hi, I am Fathia Nur Khusna from Masters the Faculty of Law of the Islamic University of Indonesia. I argue that Corporate need to develop a Whistleblowing System (WBS) that encourages someone to be open and report any irregularities committed by the corporates personnel that can result in losses to the corporate such as regulating position, authority, improper use of corporate finances, and other legal fraud. In this case the corporate must guarantee the confidentiality of identity and provide protection to the whistleblower. Reports that have been supported by sufficient initial evidence will be followed up for further investigation to determine whether a report is proven or not. The results of the investigation become the basis for Management to impose sanctions on the reported. WBS guarantees that each whistleblower can know the status of progress and follow up on the report.
The firm and consistent implementation of the WBS is one of the efforts to make a corporate have a strong perception that if it commits a deviation or violation of the law, the potential to be detected and reported is greater and if proven, the imposition of sanctions is a sure thing. This can prevent all corporate personnel from committing acts that are detrimental to themselves and the corporate.