Guide to Whistleblowing

Contributing Editors

In this new age of accountability, organisations around the globe are having to navigate a patchwork of new laws designed to protect those who expose corporate misconduct. IEL’s Guide to Whistleblowing examines what constitutes a protective disclosure, the scope of regulations across 18 countries, and the steps businesses must take to ensure compliance with them.

Learn more about the response taken in specific countries or build your own report to compare approaches taken around the world.

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13. Who can be a whistleblower?

13. Who can be a whistleblower?

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Australia

  • at Lander & Rogers

Whistleblowers are often, but not always, employees of the organisations where the misconduct has occurred or is occurring.

Previous examples of internal whistleblowers include:

  • the Commonwealth Bank Financial Planner Scandal whistleblower; and
  • the CommInsure Life Insurance Scandal whistleblower.

Previous examples of external whistleblowers who were not employees include:

  • a Ponzi Scheme whistleblower who was an external financial analyst; and
  • the Trio Capital Superannuation Fraud whistleblower who was an external financial analyst.

While the commonly accepted definition of “whistleblowing” refers to employees of an organisation (both former and current), an eligible whistleblower is not limited to an employee of an organisation. This is highlighted in section 1317AAA of the Corporations Act, particularly subsections (c), (d), (g) and (h). This section of the Corporations Act is discussed further below.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

The personal scope is very broad: it can be employees (workers); independent workers; shareholders; members of administrative, management or supervisory bodies; volunteers and interns (paid or unpaid); any person working under the supervision and direction of contractors, subcontractors and suppliers; ex-employees; or employment candidates. However, companies do not have to make their internal reporting channels accessible to persons other than their employees (the other persons can use the external system).

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

A whistleblower can be any person defined as such in the company’s Code of Ethics and Integrity, Whistleblower Procedure or equivalent document: employees, former employees, applicants, contractors, suppliers, clients or any persons that have information about inappropriate conduct.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

Any person that acquires knowledge of or information on irregularities within their work environment and reports such irregularities under the prescribed reporting procedure may be considered a whistleblower. This includes:

  • persons within an employment relationship;
  • persons with the status of a self-employed person;
  • holders of stocks in a joint-stock company or holders of shares in a limited liability company, as well as persons who are members of the administrative, management or supervisory body of a company, including non-executive members, volunteers, and paid or unpaid interns;
  • persons working under the supervision and direction of contractors, subcontractors and suppliers; and
  • persons that in any way participate in the activity of the legal or natural person.
Last updated on 29/07/2022

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France

  • at Proskauer
  • at Proskauer

To benefit from whistleblower protection, the individual can be:

  • an employee;
  • a former employee when the information was obtained in the course of his or her employment;
  • applicants for a job;
  • shareholders or partners of the entity concerned;
  • external and occasional employees of the entity; and
  • contractors and subcontractors.
Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

Whistleblowers may be employees, but also, for instance, self-employed persons, volunteers, members of corporate bodies or employees of suppliers. In addition to persons who obtain knowledge in advance, such as in a job interview or during pre-contractual negotiations, the scope of protection also includes those for whom the employment or service relationship has been terminated. As a result, the status of a whistleblower is not dependent on formal criteria such as type of employment.

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

There are no limitations or qualifications on who can be a whistleblower. Any person with knowledge of a breach or wrongdoing may report it and qualify as a whistleblower.

Last updated on 29/07/2022

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Japan

  • at City-Yuwa
  • at City-Yuwa
  • at City-Yuwa

A worker[1], dispatched worker[2], a worker of a business partner (eg, a counterparty under a service agreement), and officers[3] of juridical persons and a worker, a dispatched worker and a worker of business partners who quit within 1 year after resignation can be a whistleblower (article 2, paragraph 1 of the Act).


[1]   A worker means a worker as provided for in Article 9 of the Labor Standards Act (Act No. 49 of 1947).

[2]   A dispatched worker means a worker in Article 2, Item (ii) of the Act on Securing the Proper Operation of Worker Dispatch Business and Improvement of Working Conditions for Dispatched Workers (Act No. 88 of 1985).

[3] “officer” means an executive officer, operating officer, accounting advisor, auditor, director, inspector, liquidator, or any person other than those persons who engage in the management of a corporation based on the provisions of laws and regulation (excluding accounting auditor).

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

Only natural persons, if they comply with the definition of whistleblower as provided in the Whistleblowing Act (please see question 12).

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

Please see question 12.

It could be added that “a person who provides information on a breach” is a natural person who provides information about a breach in a company, which he or she learned about from his or her service, employment or contractual (consulting, contracting, subcontracting, internship, traineeship, voluntary activity, etc) relationship with that or during recruitment or other pre-contractual relationship. It may also include a self-employed person who reports the breach, shareholders or members of the administrative, management or supervisory body of the company (including non-executive members, as well as volunteers and paid or unpaid trainees), or any natural person employed by contractors, subcontractors or suppliers.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro
  • Workers:
    • private-sector employees;
    • public-sector employees and civil servants,
    • trainees and volunteers;
    • former employees; and
    • persons involved in recruitment processes.
  • Business partners:
    • self-employed workers,
    • employees of subcontractors and suppliers;
    • former co-contractors; and
    • persons in pre-contractual negotiations;
  • Members of corporate governance:
    • shareholders;
    • members of the administrative body; and
    • members of the supervisory body.
Last updated on 29/07/2022

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Nigeria

Nigeria

  • at Bloomfield LP

A whistleblower can either be an employee or a stakeholder of a company.

Last updated on 29/07/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The following may be considered whistleblowers: employees in the private, social or public sector; service providers, contractors, subcontractors and suppliers, as well as any persons acting under their supervision and direction; and shareholders and persons belonging to administrative or management bodies, or supervisory or controlling bodies of legal persons, including non-executive members and volunteers and interns, remunerated or unremunerated.

Last updated on 29/07/2022

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Romania

  • at STALFORT Legal. Tax. Audit.
  • at STALFORT Legal. Tax. Audit.

The term includes:

  • workers;
  • self-employed persons within the meaning of article 49 TFEU;
  • shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members, as well as volunteers and paid or unpaid trainees; and
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers.

Moreover, former employees or persons who have acquired information during the recruitment process or other pre-contractual negotiations may be whistleblowers.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

The definition given by the Draft is very similar to the one in section 4 of the Directive, namely:

  • civil servants and workers;
  • self-employed;
  • shareholders and persons belonging to the administrative, management or supervisory body of an undertaking, including non-executive members; and
  • any persons working under the supervision and direction of contractors, subcontractors and suppliers.

The Law will also apply to persons when they report or publicly disclose information on breaches obtained in a work-based relationship that has since ended, volunteers, trainees (regardless of whether they are paid or not) and persons whose employment relationship is yet to begin in cases where information on breaches has been obtained during the recruitment process or other pre-contractual negotiations.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

Please see question 12.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

Whistleblowing legislation in the UK protects a wide range of individuals. The following individuals can be a whistleblower:

  • employees;
  • employee shareholders; and
  • an extended definition of workers, including:
    • agency workers;
    • self-employed medical practitioners in the NHS and student nurses/midwives;
    • police officers;
    • homeworkers and freelancers; and
    • trainees.

The level of legal protection will depend on the status of the individual (please see question 23).

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

SEC Rule 21F-2 provides: “A whistleblower must be an individual. A company or other entity is not eligible to be a whistleblower.”

Although SOX generally applies only to publicly traded companies, the Supreme Court held in Lawson v FMR LLC (2014) that SOX’s whistleblower protections extend to employees of a publicly traded company’s contractors and subcontractors.

Although typically applied in the employer-employee context, the courts have held that the SOX whistleblower protections also extend to shareholders who provide information to the SEC.

Last updated on 29/07/2022