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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14. Are there requirements to fulfil to be considered as a whistleblower?

14. Are there requirements to fulfil to be considered as a whistleblower?

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Australia

  • at Lander & Rogers

Under the Corporations Act an individual must meet the definition of an “eligible whistleblower”.

Relevantly, the criteria set out in the Corporations Act include most people with a connection to a company or organisation who may be in a position to observe or be affected by misconduct and may face discrimination for reporting it. The importance of meeting the definition of an “eligible whistleblower” is that these people can access the rights and protections in the law when they report misconduct, and such protection is extended to their spouses and relatives.

Under section 1317AAA of the Corporations Act, an eligible whistleblower can be someone who is, or has been, any of the following:

  • an officer of the regulated entity;
  • an employee of the regulated entity;
  • an individual who supplies services or goods to the regulated entity (whether paid or unpaid);
  • an employee of a person that supplies services or goods to the regulated entity (whether paid or unpaid);
  • an individual who is an associate of the regulated entity;
  • for a regulated entity, which is a superannuation entity:
    • an individual who is a trustee (within the meaning of the Superannuation Industry (Supervision) Act 1993), custodian (within the meaning of that Act) or investment manager (within the meaning of that Act) of the superannuation entity;
    • an officer of a body corporate that is a trustee, custodian or investment manager of the superannuation entity;
    • an employee of an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid);
    • an individual who supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid); or
    • an employee of a person that supplies services or goods to an individual referred to in subparagraph (i) or a body corporate referred to in subparagraph (ii) (whether paid or unpaid).
  • a relative of an individual referred to in any of paragraphs (a) to (f);
  • a dependant of an individual referred to in any of paragraphs (a) to (f), or of such an individual's spouse; or
  • an individual prescribed by the Corporations Regulations 2001 as being an eligible whistleblower in relation to the regulated entity.
Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

The reporting should happen in a work-related context (except for financial fraud). There are two main conditions for receiving protection as a whistleblower. First, the reporter needs to have a reason to believe that the reported information on infringements was correct at the time of reporting and the information has to fall within the material scope of the Act. This will be assessed in light of a person with a similar situation and knowledge and the protection will be granted even if the reported information is later proven to be wrong. Second, the whistleblower has to follow the legal procedure for internal or external reporting or disclosing information publicly.

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

There are no statutory requirements in Brazilian law. However, it is good practice that the whistleblower is a person acting in good faith and not seeking direct financial compensation.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

Yes, persons reporting or publicly disclosing irregularities will be considered to be whistleblowers if they:

  • had a legitimate reason to believe that what they report or publicly disclose is true at the time of making the report or disclosure;
  • had a legitimate reason to believe that the information falls within the scope of the WBP Act; and
  • make the report or public disclosure as per the rules set by the WBP Act.
Last updated on 29/07/2022

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France

  • at Proskauer
  • at Proskauer

A whistleblower must fulfil the following requirements:

  • Be a natural person. It excludes legal entities such as Companies, Works Councils or associations.
  • Act in good faith.
  • Do not research any direct financial compensation.
Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

To be qualified as a whistleblower, the person providing the information must have obtained the information in the context of his or her professional activity or in the preliminary stages of professional activity.

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

Not applicable.

Last updated on 29/07/2022

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Japan

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

Please see question 12.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

Yes, certain preconditions need to be met:

  • a person must submit a whistleblower’s report;
  • the whistleblower's report must contain information regarding a possible infringement detrimental to the public interest;
  • the information provided in the report must be obtained during the performance of work duties, or during the process of establishment of work relationship, including traineeship or other types of legal relations related to professional activity;
  • the whistleblower’s report cannot be anonymous.

Finally, this whistleblower’s report has to be recognised as such, otherwise the person would lose whistleblower status.

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

Just the ones described in questions 12 and 13. It also must be assessed whether the notification is made to protect the public interest or if there is a threat to the public interest.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro

The following requirements must be met:

  • compliance with the form of reporting required by law (use of correct reporting channels);
  • respect for the hierarchy of the reporting channels; and
  • good faith.
Last updated on 29/07/2022

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Nigeria

Nigeria

  • at Bloomfield LP

There is no requirement to be fulfilled to be considered a whistleblower in Nigeria. Once an employee or a stakeholder has reasonable grounds to believe illegal or unethical conduct on the part of his or her employer, the management or directors of a company has occurred, the employee can disclose the illegal and unethical behaviour to the relevant body or authority stipulated in the company’s whistleblowing policy.

Last updated on 29/07/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Only persons who report or divulge infringements based on information obtained in the course of their professional activity will be protected as whistleblowers. However, the fact that the complaint or public disclosure of an infringement is based on information obtained in the course of a professional relationship that has since ended, or during the recruitment process or other pre-contractual negotiation stage of an existing or unincorporated professional relationship, does not preclude the person from being regarded as a whistleblower.

Last updated on 29/07/2022

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Romania

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

To qualify as a whistleblower and benefit from the protection envisaged for these persons, the individual must:

  • belong to the category described in question 13;
  • have reasonable grounds to believe that the information reported was true at the time of reporting and the reporting is necessary; and
  • have filed an internal or external reporting or public disclosure.

Romanian NGOs have criticised the wording of the second condition regarding the whistleblower verifying whether the reporting is necessary without any indication what is “necessary”.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

This is described in questions 12 and 13.

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

Yes. In the UK, only certain “protected disclosures” will be protected under the Employment Rights Act 1996. A protected disclosure must satisfy three main conditions. It must:

  • be a disclosure of information;
  • be a “qualifying disclosure”, meaning that in the reasonable belief of the worker making the disclosure it is made in the public interest and tends to show that one or more types of failures or wrongdoing has occurred or is likely to occur (for details of relevant failures or wrongdoing please see question 10); and
  • be made under the specific methods of disclosure depending on the recipient of the disclosure.

Regarding the “methods” of disclosure (ie, to whom disclosure is made), the disclosure requirements range from limited requirements for an internal disclosure to an employer up to more stringent requirements for external disclosures to a third party outside of the employer’s organisation.

Minimum Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

  • the employer;
  • a third party authorised by the employer to receive qualifying disclosures;
  • their legal adviser in the course of obtaining legal advice; or
  • to a Government minister if the worker’s employer is a statutory appointed individual or body (for example, an executive non-departmental public body or an NHS body).

In such cases, there are no additional requirements over and above the general conditions 1 and 2 set out above.  

Moderate Requirements

A qualifying disclosure is made where the worker makes the disclosure to:

  • a responsible person. In this instance, the worker must reasonably believe the relevant failure relates solely or mainly to:
    • the conduct of a person other than the employer; or
    • any other matter for which a person other than the employer has responsibility; or
  • any “prescribed persons” named in a relevant order. This includes, but is not limited to, HM Revenue and Customs, The Office of Communications (Ofcom), the Financial Conduct Authority and the Health and Safety Executive. However, in this instance, a worker must reasonably believe that:
    • the relevant failure is within the remit of the prescribed person; and
    • the information disclosed and any allegation contained in it is substantially true.

Stricter Restrictions

Under UK law, a worker may make an external disclosure to a third-party organisation (eg, the press, and union officials); however, for such disclosures to be protected four additional conditions must be met.

The worker must:

  • reasonably believe that the information they have disclosed and any allegation contained in it is substantially true;
  • not have made the disclosure for personal gain;
  • either:
    • reasonably believe (when they made the disclosure) that they will be subjected to a detriment by their employer if they make a disclosure to the employer or prescribed person;
    • (where there is no prescribed person) reasonably believe that if they were to make the disclosure to the employer, it is likely that evidence surrounding the relevant failure will be concealed or destroyed; or
    • have already made a disclosure of substantially the same information to their employer or a prescribed person.
  • The fourth and final test is that, in all the circumstances of the case, it must be reasonable for the worker to make the external disclosure.

However, where an external disclosure relates to an “exceptionally serious” failure the conditions are slightly less stringent. The conditions are:

  • the worker must reasonably believe that the information disclosed, and any allegation contained in it, is substantially true;
  • the worker must not make the disclosure for personal gain;
  • the relevant failure must be of an exceptionally serious nature (eg, rare cases of extreme public concern); and
  • in all the circumstances, it is reasonable for the worker to make the external disclosure. 
Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

Yes, though the answer to this question will depend upon the context. To qualify as a whistleblower for purposes of collecting a bounty award under Dodd-Frank, the individual must provide original information that leads to successful enforcement action.

For purposes of the anti-retaliation provisions in many whistleblower protection statutes, the individual must: engage in “protected activity” as defined under the various whistleblower statutes; suffer an adverse employment action (such as a demotion or termination); and demonstrate that the protected activity was the cause of the adverse employment action.

Last updated on 29/07/2022