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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15. Are anonymous alerts admissible?

15. Are anonymous alerts admissible?

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Australia

  • at Lander & Rogers

Yes, while whistleblowers can provide their name and contact details when they report - they can also report anonymously (ASIC Information Sheet 238 issued on 1 July 2019). 

This means that a whistleblower must make their disclosure to:

  • a director, company secretary, company officer, or senior manager of the company or organisation, or a related company or organisation;
  • an auditor, or a member of the audit team, of the company or organisation, or a related company or organisation;
  • an actuary of the company or organisation, or a related company or organisation;
  • a person authorised by the company or organisation to receive whistleblower disclosures;
  • ASIC or the APRA; or
  • a lawyer.

However, they do not have to identify themselves or their role, and so can raise their concerns anonymously and still access the same whistleblower protections afforded to those who provide their name and contact details when they report.

However, while an individual can report their concerns to ASIC anonymously, ASIC will not be able to follow up with the whistleblower for further information or next steps due to this anonymity (ASIC Information Sheet 238 issued on 1 July 2019).[2]

 

[2] However, anonymous whistleblowers will still qualify for the whistleblower protections.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

Companies with under 250 employees can choose whether or not they will allow anonymous internal reporting. Companies with 250 or more employees will have to allow it. In any case, reporters can always anonymously report externally to the competent reporting authority.

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

Yes, anonymous alerts are admissible and a recommended practice in Brazil.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

Yes, anonymous whistleblowing reports are admissible, but the company is not legally required to investigate an anonymous report. This is because the WBP Act states that a whistleblowing report must contain information on the identity of the whistleblower, and the company may deem that an anonymous report does not represent a qualifying whistleblowing report. In any case, the WBP Act extends its protection to persons who submitted an anonymous report if the identity of that person becomes known.

Last updated on 29/07/2022

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France

  • at Proskauer
  • at Proskauer

French law allows anonymous whistleblowing reports.

The processing of anonymous alerts is subject to the same rules as for identifiable alerts. However, provisions requiring feedback from the author of an internal or external alert are not applicable in the case of an anonymous alert.

The CNIL states that anonymous reports are the exception, not the rule, and should be managed with particular guarantees.

It means that when an employer receives an anonymous alert, it is preconized: to establish the seriousness of the reported violation, to establish the existence of detailed factual elements, to subject it to prior examination by the first recipient of the report before the initiation of further investigations and also to make clear, during any transmission relating to this alert, that it is anonymous.

The anonymous whistleblower is covered by the same protections as an identified whistleblower. It means that if an employer refuses to process an anonymous alert, it could be subject to an obstruction:

  • Interfering with the transmission of an alert is a criminal offence punishable by up to one year of imprisonment and a fine of 15,000 EUR.
  • In parallel, according to the law the maximum civil fine for any dilatory or abusive procedures against a whistleblower due to the information reported or disclosed is 60,000 EUR. 
  • In addition to these fines, the author of the obstruction may be ordered to pay damages to the whistleblower.

 

Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

The draft bill of the Whistleblower Protection Act does not state that the employer must set up reporting channels in such a way that anonymous reports are admissible (section 16 (1) HinSchG-E). Also, external reporting offices do not have to process anonymous reports (section 27 (1) HinSchG-E). However, employers are entirely free to choose whether to provide systems that allow for the submission and processing of anonymous reports or not.

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

As per the Whistle Blower Protection Act, a complaint is only acted upon by the competent authority if the complainant discloses their identity in the complaint. Complainants providing false identities or anonymous complaints are not recognised.

However, there is no embargo under the Companies Act against anonymous reporting concerning the activities of companies. The Audit Committee or Board of Directors may independently assess the contents of the anonymous complaint and take necessary action or attempt to reach out to the whistleblower for further information and cooperation. Leading business organisations in India allow anonymous complaints and have put in place processes to safeguard the identity of whistleblowers, and ensure the confidentiality of the investigation process.

Last updated on 29/07/2022

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Japan

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

Yes, anonymous whistleblowing is admissible[1].


[1]   Consumer Affairs Agency Guidelines Explanation, supra note 3, Section 3 II (1)(iii)(c), at p.10.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

The Whistleblowing Act does not provide such an option, but the company may accept anonymous alerts at its own discretion. However, it should be borne in mind that whistleblower protection is not possible in these cases. If the whistleblower is subsequently identified, he or she is covered by statutory protection, including against adverse consequences.

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

A person may submit an anonymous report via an internal channel, but in this case, he or she will not be subject to the protection, encouragement and support measures provided for in the Law. Also, for a person who has provided information on the breach to be recognised as a whistleblower by the competent authority, he or she must be identified (ie, the personal data requested in the notification form is necessary for the identification of the person by the competent authority when deciding whether to grant the status of whistleblower).

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro

Yes.

Last updated on 29/07/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Anonymous alerts are admissible under whistleblowing policies. However, the weight to be attached to such anonymous alerts will be determined by the whistleblowing policy of the company in question.

Last updated on 29/07/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

Not only are they admissible, but internal reporting channels must guarantee the anonymity of whistleblowers or else they will face severe penalties.

Last updated on 29/07/2022

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Romania

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

One of the major criticisms brought to the Draft Law in the form sent for promulgation is the fact that it has restricted anonymous reporting. In the previous wording (adopted by the Senate on 19 April 2022) anonymous reports were accepted and analysed as long as they contained sufficient information for verifying the alleged wrongdoing. According to the current version of the Draft Law, anonymous reports need not be analysed (article 11 paragraph 1b), since a report needs to formally bear the name and signature of the whistleblower.

It seems like the Romanian political class is still very reluctant to implement verification obligations in anonymous cases. Some critics invoke a connection with the communist past and a society in which “everybody sneaked on everybody”[3]

 

[3] On the historical sensitivity of such topic, Radu Ogarca in: “Whistle Blowing in Romania”, 2009, accessed on 20.07.2022.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

Under the Draft, anonymous alerts are authorised. Precisely, section 7.3 establishes that “internal channels should allow the submission and processing of anonymous reports”. Moreover, as per external channels, section 17 also reflects that “communication can be carried out anonymously”.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

Yes; however, a business is under no obligation to accept anonymous reports and can demand that whistleblowers identify themselves in connection with reporting.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

Yes. The Department for Business Innovation and Skills  guidance on whistleblowing recognises that it is good practice to have a facility for anonymous reporting. However, it recommends that workers should be made aware that if a disclosure is made anonymously it may be more difficult for the individual to qualify for protection as a whistleblower. There will be no documentary evidence linking the worker to the disclosure for an employment tribunal to consider.

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

Yes. Section 301 of SOX requires covered employers to implement mechanisms for the submission of anonymous employee complaints.

Whistleblowers seeking bounty awards according to Dodd-Frank can also make anonymous complaints. However, an anonymous whistleblower must be represented by an attorney in connection with their submission of information and claim for an award, and must disclose their identity to the SEC before any award will be paid.

Protection of the identity of FCA whistleblowers is more limited. They can file a lawsuit under seal initially, but the seal typically will only remain in effect for 60 days if the government agrees to pursue the case.

Last updated on 29/07/2022