Whistleblowing

It is uncertain whether a whistleblower needs to be a direct witness of the violation that they are disclosing. Rather, it appears that the only requirement that a whistleblower must show is that they have reasonable grounds to suspect that the information being disclosed about the company or organisation concerns:

• misconduct; or
• an improper state of affairs or circumstances.

Directly witnessing a violation would be the easiest way to establish reasonable grounds; however, it does not appear that this is a prerequisite for whistleblowers.

Relevantly, “reasonable grounds” means that a reasonable person in the whistleblower's position would also suspect the information indicates misconduct or a breach of the law (ASIC Information Sheet 238 issued on 1 July 2019).

No, the whistleblower does not need to be a direct witness to the violation they are reporting. Whistleblowing can be based on information or circumstances known to the whistleblower, even if he or she is not a direct witness to the violation.

There is no such condition.

There is no legal requirement that the whistleblower must be a direct witness of the violation.

No, the WBP Act expressly provides that the information on the irregularities (i.e., breaches/violations) contained in the whistleblowing report may also include reasonable doubt on actual or potential irregularities that occurred or are very likely to occur, or on attempts to cover-up such irregularities.

No, but whistleblowers must have obtained the information in the context of their work-related activities.

The law distinguishes two situations:

• information obtained in the course of professional activity: in this case, indirect knowledge is sufficient; and
• Information not obtained in the course of professional activity; in this case the whistleblower must have personal knowledge of these facts.

For example, if a person said to a co-worker that he had witnessed some illegal behaviour within the company, the co-worker could make a report through the intern alert channel even if he had not directly witnessed the facts.

In principle, the whistleblowers do not have to be direct witnesses to a violation. However, they must have obtained information about violations in connection with or before their professional activities. Violation information is defined as a reasonable suspicion or knowledge of actual or potential breaches and attempts to conceal such breaches that have occurred or are very likely to occur (section 3 (3) HinSchG). However, only whistleblowers acting in good faith are protected from any discriminatory measures as a result of their report.

There is no such requirement prescribed under applicable laws and the information provided by whistleblowers may be independently assessed and acted upon, notwithstanding the fact that the whistleblower was not a first-hand witness to the reported act.

To be protected under the Protected Disclosures Act 2014, as amended, a reporting person does not have to be a direct witness of the violation that they are reporting on. The 2014 Act provides that any worker may make a protected disclosure where they believe they have information that tends to show one or more relevant wrongdoings, and such information came to their attention in a work-related context.

Legislative Decree No. 24/2023 requires only that the whistleblower has become aware of the reported violations through work.

The requirement of being a direct witness is not laid down by the decree.

However, it is, provided that, at the time of the report, the whistleblower had reasonable grounds to believe that the information on the reported violations was true and fell within the objective scope of Legislative Decree No. 24/2023.

When reporting to the Others or the administrative organs of the authority, the whistleblower must have reasonable grounds to believe that a reportable fact has occurred, or is about to occur. This is called “truth equivalence”, and it is necessary that it is not just speculation or hearsay, but has considerable grounds, such as evidence supporting the reportable fact and highly credible statements by the people concerned[1]. However, if reporting to administrative organs with the authority and the reportable fact is considered to have occurred or is about to occur and a document with (i) the whistleblower’s name and address, (ii) the reportable fact, (iii) reasonable grounds to believe that the reportable fact is considered to have occurred, or is about to occur and (iv) reasons to believe that measures based on laws and regulations or other appropriate measures is considered to be needed to be taken with respect to the reportable fact are submitted, truth equivalence is not required.

If reporting to the Recipient of Services etc., truth equivalence is not necessarily required, and in such cases the whistleblower must satisfy the prescribed requirements such as that the reportable fact is considered to have occurred or is about to occur.

For further information, please see question 22.

The Whistleblowing Act is silent on this issue; theoretically, it is not prohibited to whistle-blow about a violation to which the person has not been a direct witness, but in any case information about these violations has to be obtained during the performance of work duties or during an internship.

The Law does not specifically refer to a “direct witness”, but it may be presumed that the answer is yes.

The Bill does not specify this point.

In principle, no. A disclosure by a whistleblower may be based on reasonable suspicion of potential improper practices and attempts to conceal such practices.

Where the whistleblower discloses his or her identity and wishes to act as a direct witness to the violation disclosed, the whistleblower can be a direct witness. However, where the disclosure by the whistleblower is marked anonymous or confidential, he need not be a direct witness to the violation disclosed.

The bill does not establish any requirements in this regard, so the whistleblower need not be a direct witness of the violation. They must, however, have gathered information about irregularities in connection with activities at the company.

The whistleblower should have an opportunity to provide all the necessary information regarding the complaint he or she wishes to report, as well as the date and place where the facts have occurred or are continuing to occur and should have an opportunity to attach documents or audio and video files that may serve as a basis for the complaint. The information provided by the whistleblower should be as detailed as possible, bearing in mind that the complaint creates suspicion towards a subject or a situation.

Please refer, also, to question 23.

No, but the whistleblower must have reasonable grounds to believe that the reported information was true at the time of the report. Also, he or she must bring evidence for the reported breaches; if he or she is aware that the reported information is untrue, an administrative fine will be applied (between 500 and 6,000 EUR).

There have been many voices from specialised NGOs stating that such a strict rule will prevent whistleblowers from reporting, since they have to prove good faith before the reported breach is taken seriously. While the previous wording of the Draft Law adopted by the Senate on 19 April 2022 contained the presumption of good faith (which is in line with the provisions of the Law 571/2004 for the public sector), the Draft Law deleted such presumption. The final version of Law 361 reintroduced such presumption, but it will be interesting to follow in practice how it really applies.

No. However, if the whistleblower made a material statement that they knew or believed to be false or did not believe to be true, they may not be eligible for protection under the relevant legislation (see question 14).

The Law does not establish any obligation in this regard, so it does not seem necessary that the whistleblower must be a direct witness of the violation. However, reporting persons should have reasonable grounds to believe that the matters reported are true, a situation that is more likely to happen when the reporting person is a direct witness.

No; however, a whistleblower seeking protection under the Whistleblowing Act must have received or collected the information in a work-related context.

Also, a whistleblower must have reasonable grounds to believe that the information reported is true.

No. The worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing.

No. A whistleblower seeking a bounty award under Dodd-Frank may qualify for an award if they provide “independent analysis” of publicly available information. For a submission to qualify as “independent analysis,” the whistleblower cannot simply point to publicly available information. Rather, the whistleblower must use publicly available materials to show important insights about the possible securities law violations that are not apparent on the face of the materials.

Likewise, an individual who blows the whistle under SOX need only have a reasonable belief that one of the forms of fraud referenced in section 806 of SOX or a securities violation occurred.