Mihaela Pop, Project Manager, CIJ
Romania adopted a law for the protection of the whistleblowers back in 2004[1], becoming one of the first European countries to have dedicated legislation. However, the life of whistleblowers in Romania has never been easy. They report countless reprisals as a result of their decision to draw attention to violations of the law or of the public interest. In Romania, whistleblowers are still vulnerable facing dismissal, threats, harassment or marginalization.
Whistleblowing is a manifestation of the freedom of expression, and those who report violations of the law or of the public interest have an essential role in any democratic society and in fighting corruption. Moreover, they are, all around the world, crucial sources for journalists. However, whistleblowers are often seen as disloyal people or even snitches.
Despite all the risks, people choose to become whistleblowers, disclosing irregularities, abuses or illegalities happening under their eyes. Due to people who decided to speak out to protect the public interest, many problems of the public system have been brought to light. This is how Romanians found out, for example, about the endemic nosocomial infections in hospitals across the country and the network that supplied them with faulty biocides, after the fire in Colectiv club, where 64 people have died. Also, the international context caused by cases such as Cambridge Analytica, Panama Papers, Football Leaks and others of the sort, in conjunction with the increased importance attached to public disclosure, have led to a growing interest in the whistleblower’s situation. This interest has materialized in international recommendations, public statements of world leaders and even new legislation dedicated to the protection of whistleblowers.
Whistleblowing is an integral part of the National Anti-corruption Strategy 2016-2020 (NAS). One of its objectives is to remedy the legislative gaps and inconsistencies regarding whistleblowers. But, from the general findings of the monitoring reports for the implementation of NAS 2016-2020[2], it appears that the national legislation dedicated to whistleblowers is “confusing”, including the provisions on warning and protection mechanisms. We have no mechanisms to promote and develop a culture of integrity and preventing corruption and the public perception that whistleblowers are disloyal people still persists.
In Europe, the subject of whistleblowing is increasingly present, and the new EU Directive on the protection of persons reporting violations of Union Law[3], adopted in October 2019, can be seen as a step forward towards a unitary approach to this subject. Romania, as all the other EU members, is within the two years of transposing and implementing the Directive.
The main objective of the Directive is to strengthen the protection offered to whistleblowers and keep them safe from many reprisals they may face. As a novelty, the Directive provisions address both the public sector and the private entities.
The Directive establishes the obligation for private companies, with more than 50 employees, and public authorities in the member states to create internal and external channels and procedures for reporting irregularities. Mechanisms must attain to established standards, highlighting the need to ensure the confidentiality of whistleblower, as the essence of his protection.
Private organizations must create secure internal reporting channels for employees, encouraging them to formulate indoor notifications with priority. This does not exclude the obligation for the same entities to provide external reporting channels and procedures for employees.
The Directive prioritizes the use of internal reporting channels in order to ensure that the information reaches people who can solve problems that can harm the public interest. The use of internal reporting channels prevents unjustified damage to a company’s reputation and its discreditation in the market, as a result of public disclosure of information. If the internal reporting mechanisms don’t work or if the employee is legitimate to think that internal mechanisms won’t work, the whistleblower can report the case directly to the competent authorities or to mass-media.
However, the Directive does not impose an order in the reporting process, giving whistleblowers the needed flexibility to choose the most appropriate channel for each context. Any company prefers to “wash the dirty laundry at home”, but the choice of employees to report irregularities internally and not to go public with information will depend only on the efforts of every private entity to provide a secure and efficient internal whistleblowing and correction mechanism. In other words, internal whistleblowing will work if and only if a reliable environment for employees is internally provided.
Studies show that private sector employees report first, if at all, inside the company. According to a recentsuch study regarding the private sector employees in the United States, only one in six disclosers (18%) ever choose to report externally. Of those who do report externally, 84% do so only after first trying to report internally. Half of those who choose to report to an outside source initially, later also report internally. Only 2% of employees go solely outside the company and never report the wrongdoing they have observed to their employer (Ethics Resource Center, 2012)[4].
As a result of an OECD study[5] (2015), 53% of respondents to the Survey on Business Integrity and Corporate Governance (in the private sector) indicated that their company’s internal reporting mechanism provided for anonymous reporting, whereas 38% indicated that reporting was confidential.
The Europe-wide project Expanding Anonymous Tipping (EAT) can bring a solution and can be the answer to the public institutions and private companies’ questions like: „how do we handle these obligations arising from the new EU Directive?” or „how can we build trust through whistleblowing?” or „how can we create a secure environment for our employees, in order to encourage them to blow the whistle indoors and not outdoors?”. In other words, the project aims to promote a whistleblowing culture and provides a way for blowing the whistle against corruption or any abuse that harms the public interest, through a guaranteed anonymous and secure mechanism.
EAT is a two-year-project conducted by civil organizations from 10 countries with registered high corruption level. It provides a guaranteed technological anonymous and secure mechanism provided by GlobaLeaks. The mechanism responds directly to the standards of the EU-wide Directive, providing anonymous and secure instances for public and private employers ensuring the safety of the whistleblower and the confidentiality of the information disclosed. In other words, it provides a way for blowing the whistle against corruption through a guaranteed anonymous and secure mechanism, named GlobaLeaks.
GlobaLeaks is a platform that works as an internal secured mechanism, not only for the public sector but also for private companies. EAT will allow private and public sector organizations to implement GlobaLeaks. The submitted disclosures will be sent to an officer of the beneficiary organization.
The Center for Independent Journalism[6] in Romania promotes the GlobaLeaks secured platform as a safe and efficient solution for public institutions and the private sector that have to comply with the Directive. Once whistleblowers have confidence that an investigation is being undertaken in a way that protects their confidentiality, minimizing the risk to suffer retaliation themselves, they may be more comfortable in sharing information, includin
[1] http://legislatie.resurse-pentru-democratie.org/legea/571-2004.php
[2] http://sna.just.ro/Rapoarte+de+evaluare
[3] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32019L1937&rid=4
[4] https://www.oecd.org/corruption/Committing-to-Effective-Whistleblower-Protection-Highlights.pdf ;
[5] http://www.oecd.org/daf/ca/Corporate-Governance-Business-Integrity-2015.pdf ;