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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20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

20. Can the whistleblower be sanctioned if the facts, once verified, are not confirmed or are not constitutive of an infringement?

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Australia

  • at Lander & Rogers

Generally, there should be no further action against a whistleblower if their accusation was founded on a reasonable cause. If the whistleblower had a reasonable but erroneous belief in the wrongdoing, and as a result they are dismissed by their employer, then they would potentially have a claim for unfair dismissal.

However, if the whistleblower did not have a reasonable ground, further action may be taken. This will depend on the parties involved and what the company or organisation decide to do. For instance, if following an investigation, it is found that the whistleblowing was deliberately false (ie, was not founded on a reasonable ground), then disciplinary action may follow. Such disciplinary action may include dismissal, termination of services or cessation of a service or client relationship.

Last updated on 23/08/2022

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Belgium

  • at Van Olmen & Wynant

Whistleblowers cannot be sanctioned if they had reasonable grounds to believe that the information on breaches they reported was true at the time of the reporting. This should be judged in light of a person in the same situation and with the same knowledge as the employee. If this is not the case, the whistleblower falls outside the scope of the protection for reporters and therefore could be sanctioned, if necessary.

Last updated on 01/08/2022

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Brazil

  • at CGM
  • at CGM
  • at CGM

The whistleblower must report facts in good faith, and unconfirmed reports made in good faith are not an infringement.

However, bad-faith reports can lead to the termination of the employment agreement. Also, it can trigger personal criminal liability for the whistleblower.

Last updated on 29/07/2022

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Croatia

Croatia

  • at Babic & Partners
  • at Babic & Partners

No, whistleblowers cannot be sanctioned for submitting a whistleblowing report or publicly disclosing irregularities (regardless of whether or not the facts are confirmed or such facts constitute an infringement), unless it can be proven that the whistleblower did not have a legitimate reason to believe that the information on irregularities was true at the time of making the report or disclosure, or did not have a legitimate reason to believe that the information falls within the scope of the WBP Act.

Last updated on 29/07/2022

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France

  • at Proskauer
  • at Proskauer

The whistleblower must report the facts in good faith. Thus, reports of unproven facts in good faith are not condemnable.

However, a whistleblower guilty of false accusation is liable for criminal penalties of up to five years’ imprisonment and a fine of 45,000 EUR.

If the whistleblower does not respect the whistleblowing procedure, he or she will not benefit from the regime provided by the law.

Last updated on 29/07/2022

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Germany

  • at Oppenhoff
  • at Oppenhoff

As a principle, the disclosure of inaccurate information about violations is prohibited under the draft bill of the Whistleblower Protection Act (section 32(2) HinSchG-E). A whistleblower may, however, not be sanctioned if the facts, after being verified, are merely not confirmed or do not constitute a violation in the final analysis. If the information disclosed was incorrect, the following legal consequences will apply:

On the one hand, the whistleblower must compensate for any damage resulting from intentional or grossly negligent reporting or disclosure of incorrect information (section 38 HinSchG-E). The whistleblower's liability for damages is based on the fact that a false report or disclosure has far-reaching consequences for the person affected or accused. The effects may no longer be completely reversible. According to the draft bill of the Whistleblower Protection Act, claims for damages resulting from merely negligent incorrect reporting should not arise. Besides, only whistleblowers acting in good faith are protected from further repercussions.

On the other hand, the whistleblower acts improperly if he intentionally discloses incorrect information in violation of the draft of section 32 (2) of the Whistleblower Protection Act (section 40 (1) HinSchG-E). This administrative offence may be punished with a fine of up to 20,000 EUR (section 40 (5) HinSchG-E).

Last updated on 29/07/2022

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India

  • at Khaitan & Co
  • at Khaitan & Co

There are no sanctions prescribed under the Companies Act if the facts, once verified, are not confirmed or do not constitute an infringement.

However, as per the Whistle Blower Protection Act, only persons who make any disclosure with a mala fide intention or knowing that it was incorrect or false or misleading, shall be punishable with imprisonment for up to two years and a fine of up to 30,000 rupees.

Last updated on 29/07/2022

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Japan

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

The business operator cannot sanction the whistleblower simply because the facts are not confirmed or do not constitute an infringement. However, if the report is made with a wrongful purpose, it will not be protected as “whistleblowing”, and the worker who made that report may also be subject to disciplinary action. The business operator bears the burden of proof of the wrongful purpose.

Last updated on 29/07/2022

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Latvia

Latvia

  • at Ellex Klavins
  • at Ellex Klavins

An administrative fine may be imposed for knowingly making false statements using a whistleblowing mechanism or making them publicly. The amount of the fine ranges from 30 EUR up to 700 EUR.

Last updated on 29/07/2022

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Lithuania

Lithuania

  • at Ellex Valiunas

The whistleblower will not incur any contractual or non-contractual liability, or liability for the insult of honour and dignity, if he or she reasonably believed the information provided was correct at the time. The whistleblower will be liable for damage caused by the provision of the information only if it is proved that the person could not reasonably believe that the information provided was correct.

Also, the status of “whistleblower” granted to a person may be revoked if the whistleblower has intentionally provided false information in the notification.

Last updated on 29/07/2022

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Luxembourg

Luxembourg

  • at Castegnaro
  • at Castegnaro

No. The whistleblower can only be sanctioned if:

  • he or she knowingly reported false information;
  • he or she reported facts in bad faith when he or she had no reason to believe that the facts were true.

Good faith is presumed and it will be up to the legal entity to prove that the conditions for protection are not met and that the concerned individual should not be granted whistleblower status.

Last updated on 29/07/2022

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Nigeria

Nigeria

  • at Bloomfield LP

Generally, a whistleblower cannot be sanctioned if he or she made the disclosure in good faith or has sufficient grounds to believe the disclosure. However, where the disclosure is frivolous or malicious, disciplinary action may be taken[1]

 

[1] Section 6.1.4 Whistleblowing Guidelines for Pensions 2008.

Last updated on 29/07/2022

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Portugal

  • at Cuatrecasas
  • at Cuatrecasas

The whistleblowing or public disclosure of an infringement, carried out under the requirements imposed by Law No. 93/2021 of 20 December, shall not in itself constitute grounds for disciplinary, civil or criminal liability for the whistleblower.

Nevertheless, if the whistleblower knew, or should reasonably have known, their complaint was false, he or she may be subject to disciplinary proceedings.

Last updated on 29/07/2022

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Romania

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

Yes, the whistleblower would pay a fine of up to 5,000 EUR if he or she knowingly reports false information. Additionally, criminal sanctions may apply if the details of the case prove that the abusive report constitutes a criminal offence according to the Romanian Criminal Code. Whether or not it is an infringement worth reporting is, however, not an analysis the whistleblower needs to perform, hence no sanction will be applied if the reported breach turns out to be irrelevant.

Last updated on 16/08/2022

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Spain

  • at Cuatrecasas
  • at Cuatrecasas
  • at Cuatrecasas

The Draft does not explicitly pardon those who have reported information that has not been confirmed or that simply does not constitute an infraction. However, the Draft does seem to ensure that those who reported information in good faith will not be punished.

On the contrary, those who knowingly reveal false information might be sanctioned, according to section 63 of the Draft.

Last updated on 29/07/2022

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Sweden

  • at Lindahl
  • at Lindahl
  • at Lindahl

If the whistleblower, at the time of reporting, had reasonable grounds to believe that the information reported was true (and of course assuming that all other conditions for protection are met) the whistleblower cannot, as a main rule, be sanctioned or otherwise held accountable.

However, this does not apply to a willful breach of qualified secrecy or to the collection of information where such collection constitutes a self-standing criminal offence.

Last updated on 02/08/2022

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United Kingdom

  • at Proskauer
  • at Proskauer
  • at Proskauer

No. There are no sanctions for false reporting under the Employment Rights Act 1996.  

While the worker must have a “reasonable belief” that the information disclosed tends to show one of the relevant types of wrongdoing, there is no requirement for the worker to prove that the allegations or facts are, in fact, true. Certain disclosures carry a higher test and require the worker to show that they believed the facts were “substantially true”.  Please see the stricter restrictions outlined in question 11.

To qualify as a protected disclosure the worker must reasonably believe that the disclosure is made in the public interest. There is no longer a legal requirement that the disclosure is made in “good faith”. However, tribunals do have a statutory power to reduce compensation for unfair dismissal by up to 25 per cent where the tribunal believes that the disclosure was not made in good faith. If a disclosure is deliberately falsely made, the whistleblower may be subject to disciplinary proceedings.

Last updated on 29/07/2022

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United States

  • at Proskauer
  • at Proskauer

Not if the whistleblower had a subjectively and objectively reasonable belief that misconduct had occurred.

Last updated on 29/07/2022