By Jean-Pierre Méan
Published on Thursday October 3, 2019
When divisions run deeper and deeper in a society, simple principles tend to be obscured by raging passions. This applies to all realms of life, including, as we can observe today, to whistleblowing. When the going gets tough, the toughs get going and the toughs are, more often than not, individuals who only have in common that they have no field experience of whistleblowing.
It is therefore necessary to revisit, in troubled times, two principles that must necessarily dominate any whistleblowing scheme if it is to be successful.
The first of these principles is that whistleblower reports should not be accepted at their face value but only as information pointing in the right direction to find information. Only when and to the extent that the whistleblower report is independently corroborated can it lead to action. However, the support of that action is not the whistleblower report but the information that has been uncovered subsequently and that, depending on its nature, may constitute evidence in a criminal investigation.
Is the latter the case, there is no point to dispute a whistleblower report on the ground that it is based only on hearsay since hearsay may be banned as evidence but certainly not as a hint on where to look for evidence. For the same reason, it is just as pointless to require the right to cross-examine a whistleblower as cross-examination applies only to witnesses providing testimonial evidence which is not the case of the whistleblower.
The second basic principle underlying whistleblowing is that whistleblowers must be protected against any form of reprisal. To reinforce this, whistleblower reports must be treated in confidence to the extent permitted to progress the investigation. However, recognizing that confidentiality in large organizations is a relative concept, state of the art whistleblowing systems permit anonymity as the best way to protect whistleblowers. Anonymous reports must be treated with additional caution but cannot be entirely ignored as they may include precious hints to initiate and conduct an investigation. If anonymity is to efficiently protect the whistleblower it must be painfully respected and, at every stage of the investigation that may require the disclosure of circumstances that may lead to the whistleblower, a decision must be made as to whether the importance of the investigation outweigh the risk to lift the whistleblower’s anonymity. If communication with the anonymous whistleblower is possible (e.g. through scheduled calls or the creation of anonymous e-mail addresses), he or she should be consulted.
Short of this latter situation, no information should be disseminated that may lead to the whistleblower, such as when or where he or she works or has worked.. It is therefore totally irresponsible for the media (or anybody else for that purpose) to disclose any such information, unless it is already otherwise easily accessible. Any pressure for such information to be disclosed is, of course, equally reprehensible.
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