Frédéric St-Martin: Should media whistleblowers be protected? 
Tuesday, December 15, 2015 at 6:28AM
Frederic St-Martin in Canada, Retaliation, Whistleblower

Whistleblowers can be a privileged source of information for journalists. Public disclosure of wrongdoing may also be one of the most powerful measures of accountability.

In some cases however, public disclosures of wrongdoing involving just a few individuals may have extremely serious consequences for their employer and some of their colleagues who have done nothing wrong.

Should disclosing wrongdoing to the media be considered socially acceptable and protected by legislation?

The relationship between whistleblowers and the media may sometimes be the only check on individuals or organizations that are not accountable for their actions. For instance, allegations first made in news reports apparently triggered the World Anti-Doping Agency Independent Commission’s report about systematic and state-supported doping in Russian athletics.

In Canada, several whistleblowers from various backgrounds disclosed corrupt activities involving the construction industry, organized crime, labor unions and politicians to the media because they feared nothing else would work. A former Montreal police chief appointed as special investigator even leaked its own report because he thought it would be buried by politicians. Such disclosures led to widespread public mobilisation against corruption, to an in-depth public inquiry and to meaningful institutional change in the province of Quebec.

Empirical research has also highlighted the importance of the media in the fight against corruption. It found a strong negative correlation between the amount of corruption and the extent of freedom of press in different countries. A successful media is thus a strong impediment to corrupt politics by making it difficult for elites to get away with corrupt behavior.

However, the potential lack of commitment towards quality journalism by some news organizations may lead to abuse. Disclosing isolated wrongdoing or false allegations publicly may cause unfair irreparable harm to the employer. In instances where the organization would have addressed the wrongdoing properly if it were reported internally in the first place, the value of an external disclosure is questionable because the allegations will often be returned back to the organization by the authorities.

Some participants in my study on Measuring the Effectiveness of Canadian Whistleblowing Law argued they witnessed whistleblowers misleading journalists because they were motivated by vengeance or public recognition. Many participants also asserted that some media always have “their own spin” on the information reported, and that such information is not always accurate.

Media whistleblowers can be protected either through concealing their identity or the possibility to seek redress for reprisals. Appropriately balanced legislation should distinguish organizations that can be rightly given the chance to address internal wrongdoing from those that cannot. My study on whistleblowing effectiveness discusses the impact of disclosures made by whistleblowers to the media, and how media whistleblowers may be protected without creating too much opportunity for abuse. It also suggests that the strength of Canadian investigative journalism can mitigate the shortcomings of Canadian whistleblowing law.

The UK's Public Interest Disclosure Act (PIDA) is an example to draw from if Canada were to design its own protections for media whistleblowers. The PIDA uses the media as the ultimate safeguard to ensure transparency and accountability. It incentivizes whistleblowers to disclose wrongdoing internally in the first place, but it protects disclosures to the media if there are reasons to believe that evidence would have been concealed, that whistleblowers would have been victimized if they had disclosed internally, or that disclosures previously made to the employer or a prescribed regulator produced no results.

The media may play an important accountability role for organizations that are not subject to the right standards, or that are successful at circumventing applicable standards. In a time of budget constraints and geopolitical turmoil, appropriately protecting public disclosures while mitigating risks of abuse may more effectively promote the public interest than leaving some organizations without appropriate and effective oversight.

*      *      *

This is the final post in my eight-part series about whistleblowing. The first post in this series is here, the second post is here, the third post is here, the fourth post is here, the fifth post is here, the sixth post is here, and the seventh post is here.

_______

Frédéric St-Martin advises a Canadian financial regulator on corporate governance, anti-corruption controls, investigations and the implementation of whistleblower programs. He graduated from the inaugural IACA MACS 2012-2014 program summa cum laude and received the Best Master Thesis Award in December 2014. He also holds a Master in Law from the University of Montreal, as well as a Bachelor of Common Law and Civil Law from the University of Ottawa. He can be reached by email here and through linked here.

Article originally appeared on The FCPA Blog (https://www.fcpablog.com/).
See website for complete article licensing information.