Leaks, legislation and freedom of speech: How can the law effectively promote public‐interest whistleblowing?

Fasterling, Björn; Lewis, David

doi:10.1111/j.1564-913x.2014.00197.x

Cited by 27 publications

(5 citation statements)

References 16 publications

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“…Many scholars have studied the motives and experiences of whistleblowers (e.g., Ayers and Kaplan 2005;De Graaf 2010;Loyens 2012;Miceli et al 1991;Near and Miceli 1996;Roberts 2014;Rothschild and Miethe 1999). Whistleblowing policies and legislation in different countries have also been studied extensively either by scholars using a comparative law perspective (see e.g., Dworkin and Brown 2013;Fasterling and Lewis 2014;Lewis and Trygstad 2009;Morvan 2009;Vaughn 2012), or by international organisations (BluePrint for Free Speech 2015; OECD 2011; Osterhaus and Fagan 2009; PACE Parliamentary Assembly of the Council of Europe; UNODC 2015). However, the agencies that receive reports made by whistleblowers-in the whistleblowing literature referred to as internal or external recipients 'who can effect action' (Miceli and Near 1992, p. 16)-have been given much less attention in academia (Brown et al 2014;Moberly 2014).…”

Section: Introductionmentioning

confidence: 99%

Whistleblowing from an International Perspective: A Comparative Analysis of Institutional Arrangements

Loyens

Vandekerckhove

2018

Administrative Sciences

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While there appears to be consensus amongst policy makers that legislation to protect whistleblowers is needed, the emerging policy question addresses what institutional framework is most fit to implement whistleblowing legislation. However, the institutions to whom whistleblowers report-which are in the literature addressed as internal or external recipients of whistleblowing concerns-have been given limited scholarly attention. Research has instead focused on motives, behaviour, and experiences of whistleblowers on the one hand, and whistleblowing legislation on the other. Particularly the role of external agencies, like ombudsmen, anti-corruption agencies, and Inspector General offices, in dealing with whistleblowing concerns has been under-studied. With the aim of starting to fill this research gap, this paper reports the findings of a comparative study of governmental whistleblowing agencies (other than courts) and non-governmental whistleblowing protection organizations (NGOs), as important examples of external recipients of whistleblowing concerns, in 11 countries with whistleblowing legislation. The study aimed to find similarities and differences between these agencies, and to identify challenges and dilemmas that the installation of whistleblowing agencies bring about. Data collection was done by means of 21 interviews with academic experts and high-ranking officials within the selected countries, and in-depth analysis of available (policy) documents and reports. This paper finds that in the studied countries, there is a trend to install governmental whistleblowing agencies that combine various tasks to implement whistleblowing legislation (e.g., advice, psychosocial care, investigation of wrongdoing or retaliation, and prevention of wrongdoing). When such agencies are absent or considered weak, NGOs may step in to fill the need. Whereas most governmental whistleblowing agencies have investigative tasks, in Belgium and in the Netherlands, investigations of wrongdoing and retaliation are done within the same department for the reason that these issues cannot be easily separated. Other agencies have separated these tasks to avoid conflict of interest or because different expertise is claimed to be needed for both. Further research is needed to analyze the effects of each institutional approach, and how to avoid conflict of interest, particularly the risk of partial investigations of wrongdoing. Our study also shows that while not many countries provide government funds for specific psychosocial care for whistleblowers, most governmental whistleblowing agencies do give advice to whistleblowers and invest in the prevention of wrongdoing or training of those who implement whistleblowing legislation. While providing important insights into the role of whistleblowing agencies in 11 countries, this study also develops questions for further research.

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Section: Introductionmentioning

confidence: 99%

Whistleblowing from an International Perspective: A Comparative Analysis of Institutional Arrangements

Loyens

Vandekerckhove

2018

Administrative Sciences

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“…First, they can help resolve privacy disputes between consumers/employees and organizations by providing rules that stipulate the data rights of the data subjects and the obligations of organizations (Dowling, 2000). Second, they facilitate the exposure of corporate data protection malpractices through the effect of whistleblowing (Fasterling and Lewis, 2014). The data subjects, acting as whistleblowers, are able to lodge complaints with the supervisory authority to report the possible existence of an organization's data processing activity that constitutes a violation of the data protection law.…”

Section: The Regulatory View Of Corporate Data Protection Malpracticesmentioning

confidence: 99%

Toward a taxonomy of corporate data protection malpractices and their causal mechanisms: A regulatory view

Hai-ping

Jiang

Cai

et al. 2023

Journal of Information Technology

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Corporate data protection malpractices are not uncommon, especially in contemporary technological environments. Embracing a regulatory view, this study attempts to advance a taxonomy of prevailing corporate data protection practices and their causal mechanisms by analyzing cases where organizations were fined for violating data protection legislation. Selecting the General Data Protection Regulation (GDPR) enacted by the European Union (EU) as our benchmark, this study employs an iterative taxonomy development technique as guidance and conducts a thematic analysis on 875 cases of GDPR enforcement. In so doing, we derive a conceptual model comprising 6 focal categories and 28 subcategories of prevailing corporate data protection malpractices existing within organizations as well as 4 main categories and 22 subcategories of causal mechanisms underlying these identified malpractices. Empirical findings from this study not only reinforce corporate data protection malpractices established in prior research, but they also yield novel malpractices which have been neglected in previous work. From a pragmatic standpoint, this study yields invaluable insights into the prevention and resolution of corporate data protection malpractices for practitioners.

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“…258 A fundamental human-rights-based employment policy based on concerns for procedural fairness and for free speech might have interesting longer term consequences for perceptions of whistleblowing in the workplace. It appears, however, that currently the courts and employment tribunals have not been willing to recognise free speech provisions in relation to actions under Part IVA of the Employment Act 1996 261 and the Freedom to Speak Up approach itself is one of an employment law driven rather than fundamental human rights driven perspective.…”

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confidence: 99%

Understanding the knowledge gaps in whistleblowing and speaking up in health care: narrative reviews of the research literature and formal inquiries, a legal analysis and stakeholder interviews

Mannion

Blenkinsopp

Powell

et al. 2018

Health Serv Deliv Res

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Background There is compelling evidence to suggest that some (or even many) NHS staff feel unable to speak up, and that even when they do, their organisation may respond inappropriately. Objectives The specific project objectives were (1) to explore the academic and grey literature on whistleblowing and related concepts, identifying the key theoretical frameworks that can inform an understanding of whistleblowing; (2) to synthesise the empirical evidence about the processes that facilitate or impede employees raising concerns; (3) to examine the legal framework(s) underpinning whistleblowing; (4) to distil the lessons for whistleblowing policies from the findings of Inquiries into failings of NHS care; (5) to ascertain the views of stakeholders about the development of whistleblowing policies; and (6) to develop practical guidance for future policy-making in this area. Methods The study comprised four distinct but interlocking strands: (1) a series of narrative literature reviews, (2) an analysis of the legal issues related to whistleblowing, (3) a review of formal Inquiries related to previous failings of NHS care and (4) interviews with key informants. Results Policy prescriptions often conceive the issue of raising concerns as a simple choice between deciding to ‘blow the whistle’ and remaining silent. Yet research suggests that health-care professionals may raise concerns internally within the organisation in more informal ways before utilising whistleblowing processes. Potential areas for development here include the oversight of whistleblowing from an independent agency; early-stage protection for whistleblowers; an examination of the role of incentives in encouraging whistleblowing; and improvements to criminal law to protect whistleblowers. Perhaps surprisingly, there is little discussion of, or recommendations concerning, whistleblowing across the previous NHS Inquiry reports. Limitations Although every effort was made to capture all relevant papers and documents in the various reviews using comprehensive search strategies, some may have been missed as indexing in this area is challenging. We interviewed only a small number of people in the key informant interviews, and our findings may have been different if we had included a larger sample or informants with different roles and responsibilities. Conclusions Current policy prescriptions that seek to develop better whistleblowing policies and nurture open reporting cultures are in need of more evidence. Although we set out a wide range of issues, it is beyond our remit to convert these concerns into specific recommendations: that is a process that needs to be led from elsewhere, and in partnership with the service. There is also still much to learn regarding this important area of health policy, and we have highlighted a number of important gaps in knowledge that are in need of more sustained research. Future work A key area for future research is to explore whistleblowing as an unfolding, situated and interactional process and not just a one-off act by an identifiable whistleblower. In particular, we need more evidence and insights into the tendency for senior managers not to hear, accept or act on concerns about care raised by employees. Funding The National Institute for Health Research Health Services and Delivery Research programme.

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Leaks, legislation and freedom of speech: How can the law effectively promote public‐interest whistleblowing?

Cited by 27 publications

References 16 publications

Whistleblowing from an International Perspective: A Comparative Analysis of Institutional Arrangements

Whistleblowing from an International Perspective: A Comparative Analysis of Institutional Arrangements

Toward a taxonomy of corporate data protection malpractices and their causal mechanisms: A regulatory view

Understanding the knowledge gaps in whistleblowing and speaking up in health care: narrative reviews of the research literature and formal inquiries, a legal analysis and stakeholder interviews

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