1 00:00:00,000 --> 00:00:07,000 Welcome to the Oxford Undergraduate Law Podcast where we discuss the law and its relationship with society. 2 00:00:07,000 --> 00:00:11,000 I'm Juliette and I'm Rach and we are your podcast editors. 3 00:00:11,000 --> 00:00:17,000 We will platform academics, practitioners and experts from different backgrounds on this podcast. 4 00:00:17,000 --> 00:00:23,000 In today's episode, we'll be joined by Dr. Vigilanta Abazi to learn about whistleblower law. 5 00:00:23,000 --> 00:00:28,000 Dr. Vigilanta Abazi is assistant professor at Maastricht University in the Netherlands. 6 00:00:28,000 --> 00:00:32,000 She was resident fellow at Information Project Society at Yale Law School, 7 00:00:32,000 --> 00:00:36,000 fellow at NYU School of Law and Fulbright Scholar at Columbia Law School. 8 00:00:36,000 --> 00:00:41,000 Vigilanta co-drafted the Model EU Directive for the Protection of Whistleblowers. 9 00:00:41,000 --> 00:00:46,000 In our conversation, we'll discuss the directive as part of a wider exploration of whistleblower law. 10 00:00:46,000 --> 00:00:50,000 Thank you so much, Vigilanta, for joining us on today's podcast. 11 00:00:50,000 --> 00:00:53,000 It is such a pleasure and a privilege to have you here with us. 12 00:00:53,000 --> 00:00:57,000 Thank you so much for inviting me. It's very exciting to be part of this wonderful podcast. 13 00:00:57,000 --> 00:01:02,000 Thank you. There's a lot for us to explore, but from the start, let's keep it simple. 14 00:01:02,000 --> 00:01:06,000 What are whistleblowers and why are they entitled to protection? 15 00:01:06,000 --> 00:01:13,000 That's a great question to start and thinking about because I think sometimes we hear this word, but what does it actually mean? 16 00:01:13,000 --> 00:01:21,000 There are a lot of academic definitions of whistleblowers, but in essence, the easiest way to think about them, 17 00:01:21,000 --> 00:01:31,000 they're individuals who are alerting us for some possible wrongdoing that is causing some sort of harm to the public interest. 18 00:01:31,000 --> 00:01:36,000 And to give you some names of people, maybe especially lately, that are around. 19 00:01:36,000 --> 00:01:43,000 So let's say the Facebook whistleblower, Frances Hogan, she is an employee working in the company 20 00:01:43,000 --> 00:01:48,000 and reporting on possible wrongdoings of that company for the public good. 21 00:01:48,000 --> 00:01:53,000 Now, the very important question of why should the law do anything about these individuals? 22 00:01:53,000 --> 00:02:02,000 Well, because of the core essence, these individuals are putting at their own sort of risk, their reputation, their job, 23 00:02:02,000 --> 00:02:07,000 their livelihood sometimes, it depends on a series of cases that they're reporting about, 24 00:02:07,000 --> 00:02:12,000 in order to not protect themselves even, but really to protect us, the society. 25 00:02:12,000 --> 00:02:19,000 They're telling us, hey, Cambridge Analytica, you're invading people's privacy or the Volkswagen case. 26 00:02:19,000 --> 00:02:24,000 Hey, people are getting actually are using the cars that are shouldn't be in the market or the Nestle whistleblower. 27 00:02:24,000 --> 00:02:26,000 These products are not safe enough. 28 00:02:26,000 --> 00:02:33,000 Or, of course, Frances Hogan telling us that profit over people is exactly how the business is then admitted. 29 00:02:33,000 --> 00:02:40,000 So over and over again, the interest that is being protected or that they're alerting us about is the public interest. 30 00:02:40,000 --> 00:02:46,000 And there the law has some obligation to come and provide some way. 31 00:02:46,000 --> 00:02:55,000 First of all, the conduct of how these individuals should report and create some level of predictability and legal certainty 32 00:02:55,000 --> 00:03:00,000 also for the organization so that they know, OK, this is what's happening. 33 00:03:00,000 --> 00:03:05,000 And this is how we can tell our employees how to report if they see something's going wrong. 34 00:03:05,000 --> 00:03:14,000 But also to make sure that if you lose your job or if you have retaliation, that actually we as a society know that is wrong. 35 00:03:14,000 --> 00:03:23,000 And therefore we want to make sure that our laws protect these individuals and they continue to feel encouraged to report our wrongdoing. 36 00:03:23,000 --> 00:03:28,000 Considering this clear need for protection, what legal mechanisms should be in place? 37 00:03:28,000 --> 00:03:32,000 And how far does the existing legal landscape map onto those ideals? 38 00:03:32,000 --> 00:03:37,000 Yeah, so the legal field right now is very much a different landscape. 39 00:03:37,000 --> 00:03:44,000 Sort of you have different countries have different models in a way and how they're protecting whistleblowers in the UK. 40 00:03:44,000 --> 00:03:54,000 There's legislation for now almost over 20 years and trying to protect individuals who report on the public interest in the US. 41 00:03:54,000 --> 00:03:57,000 There's been laws in different sort of sectors. 42 00:03:57,000 --> 00:04:05,000 It's more of a sector by sector approach. So depending if you're working in the financial sector or if you're working in the medical industry or whatnot. 43 00:04:05,000 --> 00:04:08,000 And some of these reportings have started in the 70s. 44 00:04:08,000 --> 00:04:18,000 In the case of the European Union, we have a directive since 2019 to sort of protect whistleblowers to report on 12 different policy fields, 45 00:04:18,000 --> 00:04:35,000 as different as environmental law, which is so important and crucial in light of everything that we're facing with the crisis and climate change to things such as privacy again or aviation safety or anti-corruption. 46 00:04:35,000 --> 00:04:42,000 So in terms of what does the law do and sort of process these procedures of how one should report. 47 00:04:42,000 --> 00:04:50,000 Do I report first to my employer or do I get protections if I actually immediately go and report to an agency? 48 00:04:50,000 --> 00:04:56,000 What happens if I immediately go to the press? Can that be considered that I blew the whistle as well? 49 00:04:56,000 --> 00:05:04,000 What happens if I reveal a trade secret? Do I have some sort of negative consequences for that or am I protected once more? 50 00:05:04,000 --> 00:05:18,000 So a lot of laws differ on these sort of important questions. If we can think of them in sort of different categories, I think one way to remember them would be how should the whistle be blown in a way. 51 00:05:18,000 --> 00:05:27,000 So how should I alert? Second, what happens? What can law do for me if something goes wrong? Let's say I get fired or retaliated against. 52 00:05:27,000 --> 00:05:39,000 And third, what are some more obligations in terms of litigation or some of the aspects around the court and what kind of protections there can take place? 53 00:05:39,000 --> 00:05:47,000 I'd like to pick up on the second category you just raised in terms of what the law can do for whistleblowers who are retaliated against. 54 00:05:47,000 --> 00:05:54,000 Because hearing from the accounts from whistleblowers themselves, it seems that retaliations impose huge hurdles for whistleblowers. 55 00:05:54,000 --> 00:05:58,000 When they already face pretty high costs to make their disclosures in the first place. 56 00:05:58,000 --> 00:06:04,000 So how can the law address these financial burdens experienced by whistleblowers? 57 00:06:04,000 --> 00:06:11,000 So that's a very excellent point. And this is actually one of the at the heart of the challenges of blowing the whistle. 58 00:06:11,000 --> 00:06:18,000 Because oftentimes, I mean, law sometimes can be slow. Court cases, if something ends up at a court, can be years. 59 00:06:18,000 --> 00:06:30,000 I know whistleblowers who have been dragged through court for over decades, including, for example, a case with Switzerland that was sort of you need to exhaust, let's say, national remedies. 60 00:06:30,000 --> 00:06:33,000 Then if you're trying to go to the European Court of Human Rights. 61 00:06:33,000 --> 00:06:41,000 Now, this might be different in terms of how long the process is taken internally. Do you have enough protections or not? 62 00:06:41,000 --> 00:06:48,000 So even from a cost, a legal cost like that's a tremendous burden for the whistleblower. 63 00:06:48,000 --> 00:07:01,000 Secondly, oftentimes these individuals in a way do get a little bit blacklisted because sometimes, unfortunately, the reputation goes that they're the troublemaker because they reported something for the company. 64 00:07:01,000 --> 00:07:12,000 And so maybe no future employer really wants to take them on board so that that's an additional financial burden around. Well, what can I actually continue to work in this field? 65 00:07:12,000 --> 00:07:19,000 And unfortunately, many whistleblowers end up being in financial strain of not being able to do that. 66 00:07:19,000 --> 00:07:26,000 Now, there's ways in which different systems handle this. There's a big, big debate right now. 67 00:07:26,000 --> 00:07:33,000 One of the biggest questions is, should the law have financial rewards or should that not be the case? 68 00:07:33,000 --> 00:07:38,000 And so what is the logic here? What are sort of the pros and cons of whether we do this or not? 69 00:07:38,000 --> 00:07:42,000 On the one hand, we want to say, look, you did the right thing. Great. 70 00:07:42,000 --> 00:07:48,000 You get compensated if you were harmed. But we don't want to extremely incentivize whistleblowing. 71 00:07:48,000 --> 00:07:53,000 The people in a way do it to kind of run for the money, so to speak. 72 00:07:53,000 --> 00:08:12,000 Then there's the other school of thought when it's saying, look, actually, empirically speaking, these individuals have such constraints that it's only legitimate that we as a society give them some sort of financial stability by giving them the sort of call it reward if you want or call it some financial compensation. 73 00:08:12,000 --> 00:08:19,000 That's more than that. And here we really do have different systems and different ways of thinking about it in the UK, the US and Europe. 74 00:08:19,000 --> 00:08:25,000 At least these are sort of right now the predominant models. Of course, there's legislation also in Australia for a longer time. 75 00:08:25,000 --> 00:08:30,000 There are different choices being made around do we provide financial incentives or not? 76 00:08:30,000 --> 00:08:41,000 There are cases in the US, especially in a particular lawsuit, that sort of the individual helps the government in the process of finding out this investigation. 77 00:08:41,000 --> 00:08:48,000 And there the rewards can be quite big. And that can be fantastic, because in a way, at least you have that security. 78 00:08:48,000 --> 00:09:06,000 That's not the case in Europe. And there's very big resistance, a lot in continental Europe, especially from member states of the European Union thinking, no, this is not the way we want individuals to think about their employer or how we want them to think about reporting. 79 00:09:06,000 --> 00:09:19,000 And I leave it up to the listeners in terms of making their own mind of whether a whistleblower should get rewards or not. But these are some of the dilemmas that we do have right now and some of the academic debates that we're facing. 80 00:09:19,000 --> 00:09:31,000 It seems, though, that some whistleblowers are prevented from even entering the stage where the possibility of reward becomes a point of discussion, given the retaliation mechanisms they face before that. 81 00:09:31,000 --> 00:09:37,000 Could you expand on the role of these retaliation mechanisms and how the law addresses them? 82 00:09:37,000 --> 00:09:42,000 A big challenge in a way sometimes to even prove that you've been retaliated against. 83 00:09:42,000 --> 00:09:54,000 I reported that there was some sort of mismanagement or corruption in my company, or that the manager that is supervising me sort of sometimes not using the funds appropriately, etc, etc. 84 00:09:54,000 --> 00:10:06,000 Now I report things seem to be fine. Maybe that person's job, maybe that person's under investigation or whatnot. And then slowly I'm not fired. Okay, things seem fine, but I don't get promoted. 85 00:10:06,000 --> 00:10:16,000 I'm not invited to the training and these things can take longer. And sometimes it's so much more harder to say, oh, I reported I blew the whistle. 86 00:10:16,000 --> 00:10:31,000 And therefore this is why I'm kind of being neglected or people are kind of my colleagues are not talking to me as much. I was not invited to that office after drinks party and sort of those are also moments where do we call that retaliation? 87 00:10:31,000 --> 00:10:36,000 Are we already being sidelined, outcasted a little bit? And how do I prove that? 88 00:10:36,000 --> 00:10:52,000 So sometimes the clear example can be that, oh, okay, you're fired. That's a very clear sense of saying, well, okay, I'm outstead now. But we've had actually cases also in front of the European Court of Human Rights where by law the company or the organization 89 00:10:52,000 --> 00:11:07,000 is supposed to rehire this person and they technically rehire them on paper, but the keys to their office are not being returned. So sometimes even things that can seem silly like this or your security badge is not being handed over to you and you can't really access the building. 90 00:11:07,000 --> 00:11:24,000 And so the purpose of the law is to make sure that the rules are broad enough. The situations that may on the face of it seem even ridiculous or silly or not necessarily something one could think as retaliation actually are retaliation. 91 00:11:24,000 --> 00:11:38,000 And here I guess once again I can mention the directive because it is really trying to sort of set a golden standard and sort of saying no, any form whatsoever is retaliation. 92 00:11:38,000 --> 00:11:51,000 So that there is really no bullying or any kind of practice around the individual that's a pressure because that too can be retaliation. And being in those shoes is extremely difficult. 93 00:11:51,000 --> 00:12:05,000 It's really interesting how you've raised these situations of social exclusion that whistleblowers may face following their disclosure, where these harmful social dynamics arise, not only from individuals but also from an organization's culture. 94 00:12:05,000 --> 00:12:09,000 Are legal mechanisms even appropriate to protect whistleblowers? 95 00:12:09,000 --> 00:12:33,000 Oh, I love this question. It's actually one thing that I oftentimes in my legal article in writing and sort of try to explain, okay, these are the rules, this is what you should do or not. And then oftentimes I kind of look at the books that are on organizational studies and sociology and all these things because you're really pointing at the critical point, which is culture. 96 00:12:33,000 --> 00:12:49,000 And that law and culture, law can help shape culture and shift it, but it can do so incrementally. And if you have an organization that has very much a hush-hush culture, let me give you the example here at Volkswagen. 97 00:12:49,000 --> 00:13:03,000 It was years that employees, different sets of employees, that different layers were trying to raise the bell, so to speak, to ring the alarm around of issues that were going on there. 98 00:13:03,000 --> 00:13:18,000 And there was such a hush-hush culture in the company apparently that that was a no-go. And there, even if the law is protecting you, even if you sort of on paper have certain rights, if you know, if you fear to speak up to your manager, 99 00:13:18,000 --> 00:13:32,000 or if you know that actually that's not what we do around here, then you sort of behave accordingly. And then the cost actually of deviating from that cultural norm, even if the legal norm is protecting you, is so much more higher. 100 00:13:32,000 --> 00:13:46,000 So you have so much more of a sort of a, you would need really a leap of courage to actually do that much more. Where as a positive example, for instance, in Norway, reporting with the police, even the reporting channel, if I'm not mistaken, 101 00:13:46,000 --> 00:14:03,000 is sort of called Thank You for Reporting or something along the lines of making it very positive, because the idea is to say, is the most normal thing you can do to pick up the phone and tell us if something's wrong or if you want to fill out a form. 102 00:14:03,000 --> 00:14:15,000 And there, and that's where in a way, law can have certain powers, but if you're an organization, you can have so much more power internally in what kind of culture you create around speaking up. 103 00:14:15,000 --> 00:14:21,000 And I'd like to end on this question on why is it even important to have this culture. 104 00:14:21,000 --> 00:14:29,000 It's not only the benefit that the whistleblower is sort of is having a better experience of blowing the whistle. It's not even about that at all. 105 00:14:29,000 --> 00:14:44,000 Actually, empirical data tell us very clearly that there is a clear correlation between organizations that have a speak up culture, have better management, have lower costs, have less litigation. 106 00:14:44,000 --> 00:14:56,000 Because simply, people feel comfortable to say, hey, this didn't work out so well, or there's a problem here, and we solve it, and there's a belief and there's trust in the system that we will sort it out internally. 107 00:14:56,000 --> 00:15:06,000 So actually, the reputational costs are lower, because you don't feel the need to go to the press or to call the agency because you know, no, we do things well in this organization. 108 00:15:06,000 --> 00:15:15,000 I speak up my problem, this problem will be handled. So it's a very much a win-win to create a culture of speaking up. 109 00:15:15,000 --> 00:15:27,000 And bottom line, last thing, sorry, this is one of the critical questions. I hope I haven't indulged too much in giving too many different settings, is around the duty in a way to listen. 110 00:15:27,000 --> 00:15:46,000 Because if a person is coming up with information, if you have some sort of a, not necessarily legal duty to speak up, but some sort of a moral feeling that this was wrong, I should say something, then there should be some equivalent of listening to that individual. 111 00:15:46,000 --> 00:15:55,000 Thank you for providing some examples illustrating what organizations in the private and public sector can do internally to create a culture of speaking up. 112 00:15:55,000 --> 00:16:10,000 But if we look at a different example within the public sector, the part of the state that deals with classified information, it's claimed that a culture of secrecy, so to say, is essential for maintaining national security or other political concerns. 113 00:16:10,000 --> 00:16:15,000 In this particular case, how far can whistleblowers be protected? 114 00:16:15,000 --> 00:16:29,000 This is one of the most tenacious fields, because with national security, there's usually a higher level of privilege to maintain secrecy, because the stakes are right higher. 115 00:16:29,000 --> 00:16:50,000 If we are planning an attack on some sort of a terrorist organization, or if we're looking for their leader, or if we want to keep certain information secret from being even sort of accessible, not only the fact that we don't want the public to know, but we obviously don't want it to be in the wrong hands. 116 00:16:50,000 --> 00:17:10,000 One of the main functions of a state or public authority in general is the safety, the security of people, right? And so if we as individuals in a democratic society are entrusting the state with our security, we were also while doing that sort of entrusting that you will need some 117 00:17:10,000 --> 00:17:30,000 wider margin in how you draw the balance between transparency and secrecy in order to make sure that you're maintaining that obligations of security. But this is also the field where we see sometimes the most abuse of secrecy, because very famously sort of we draw the kind of distinctions of secrets. 118 00:17:30,000 --> 00:17:43,000 There are the more shallow secrets and deep secrets. Shallow secrets are okay, we know that there's an issue, there's a security problem. So we are aware of it. It's shallow, but we don't know the details of things and that we don't have access to. 119 00:17:43,000 --> 00:17:53,000 There's so many potentially issues where we don't even know what we don't know, right? And those are the deeper, what we call in academia, sort of deep secrecy. 120 00:17:53,000 --> 00:18:18,000 Now the problem when it comes to checks and balances to making sure that there's no abuse of power in these situations, as clearly we've seen in the recent history that there have been abuses of power that secrecy allows because it gives me such a veil of maintaining hidden what I'm actually doing that I can indulge into abuses of my power 121 00:18:18,000 --> 00:18:37,000 without anyone finding out and therefore I'm not held accountable and I still have the excuse that I'm doing this for security purposes. In this situation, that's where the unique power whistleblowers lies actually and this is where it is their most heightened in a way, importance in our society, because whistleblowers 122 00:18:37,000 --> 00:18:56,000 are the insiders who are having access to this information and I can bring that to the public which may otherwise have never seen the light of day. And there, unfortunately, we come to the tension between, well, how much law can protect them? Why is that an additional problem? 123 00:18:56,000 --> 00:19:18,000 To the contrasting example, when Francis Hogan from Facebook blew the whistle on sort of saying, hey, Facebook has awareingly sort of been allowing certain problems or hasn't been adequately addressing them, whether that's issues in Myanmar with athletic cleansing, whether it's democratic elections and the January 6th insurrections, etc. 124 00:19:18,000 --> 00:19:41,000 They're so obsessed with their profits that actually they're for letting go, they're forgoing their responsibility or they're not doing enough in maintaining protections. That's very easy in a way for a government to step in and as we actually have seen, Francis Hogan was given a hearing in the US Congress, in the UK, in Europe, in Brussels. 125 00:19:41,000 --> 00:20:03,000 We want to engage with the Swiss whistleblower because it's not the government that's the bad actor in this situation. However, if we make a comparison with, let's say, when Edward Snowden blew the whistle on the privacy issues and the surveillance apparatus that took place, there he's a person on Grata, he's obviously being charged under the Espionage Act, 126 00:20:03,000 --> 00:20:13,000 and it becomes complicated with him being in hideout in Russia and the geopolitical interests and tensions that stem from that, etc. 127 00:20:13,000 --> 00:20:30,000 Now, there, the government itself is being accused of being the bad actor. And so you have the tension very much inherent in that situation of sort of saying, no, actually, we're going to bring him over and we're going to have these conversations and we're going to look, etc. 128 00:20:30,000 --> 00:20:43,000 That is not to say that the Snowden revelations were not impactful, because one thing, while there's maybe the changes in the US didn't happen as much, and of course he's still, in a way, in Russia. 129 00:20:43,000 --> 00:20:56,000 If I look at, if I give the examples of what's happened in the cases for privacy in Europe, the the Shrems cases, as we know them, for any students studying privacy law, this is sort of very much very important cases. 130 00:20:56,000 --> 00:21:17,000 The Court of Justice of the European Union, based in Luxembourg, actually quotes Snowden and the Snowden revelations as one of the basis why Europe cannot share data, or why we should invalidate at the time, the consensus, the commission agreement that had given the privacy shield for the US to share data, the companies from the US getting data. 131 00:21:17,000 --> 00:21:32,000 So a long story short, kind of, because this is in a way such a fascinating developing field around national security, corporate interests, executive privilege, these are sort of checks and balances in a democracy. 132 00:21:32,000 --> 00:21:46,000 These are such big tensions in a way that the individual can fall within the cracks. And, and we're seeing that. So, as I say, to summarize it for the government, when the whistleblower is blowing the whistleblower, 133 00:21:46,000 --> 00:22:03,000 when the whistleblower is blowing the whistle on a matter of national security, it immediately touches upon all these much more heightened strict rules around what can be disclosed what national classified documents can be revealed or not revealed, which is a very different situation 134 00:22:03,000 --> 00:22:15,000 than for the government, if it's a corporate case, and saying there's a margin there around revealing interests for the public, and we as a government can do something to legislate on it. 135 00:22:15,000 --> 00:22:23,000 There are some very popular cases of Francis Hogan and Edward Snowden, but it's really interesting to hear the extent to which they were treated differently. 136 00:22:23,000 --> 00:22:28,000 What factors contributed to them receiving such differential treatment? 137 00:22:28,000 --> 00:22:52,000 Well, some of the cases are incredibly different, right? So, national security case, the other is corporate abuse, potential corporate abuse of power, or misuse of power, let's say, or negligence around their responsibilities. So that too, in a way, is very different set of circumstances, who is the accused, right, if we're thinking of in legal terms. 138 00:22:52,000 --> 00:22:58,000 I think it's also a very important factor to keep in mind is the law itself. 139 00:22:58,000 --> 00:23:20,000 And that is not just a question around how we talk about these things in the press or among people with themselves, but how is law in itself structuring for one whistleblower to seem positive whistleblower or at least for them to be sort of more welcomed for blowing the whistle and the other whistleblower being more penalized or being more sort of put in the trader category. 140 00:23:20,000 --> 00:23:40,000 And in that sense, if you are whistleblower exposing national security classified documents in a country that clearly will rely on the Espionage Act and by which default if you're doing that, you're a traitor and you're entering that realm, essentially where you are apparently the 141 00:23:40,000 --> 00:23:54,000 leader of doing that. Obviously, that's very disputable in terms of whether what's being disclosed is actually relevant for society to know whether that surveillance and that level of intrusion of privacy was justified or not and illegal. 142 00:23:54,000 --> 00:24:10,000 But so the law itself in a way is reacting and shaping the legal position of these individuals differently. So that is actually a very important thing to keep in mind when we're categorizing whistleblowers and good and bad. 143 00:24:10,000 --> 00:24:26,000 But I would say, actually, and a lot of the interviews with whistleblowers that I've done for my research, what you hear constantly, they never want to make it this about them. It's never something that they're striving for. They're not craving for this attention. 144 00:24:26,000 --> 00:24:52,000 Quite frankly, very often they're so uncomfortable with even being called a whistleblower up to the moment where they have no other solution but to own that title or label if you'd like. There's a lot to be said around the possibilities or the structure of law itself into what extent are we making it too much about the person and not enough about what are they reporting on as a first thing. 145 00:24:52,000 --> 00:25:02,000 Because is that second thing, the role of the law in structuring this person as the good or the bad whistleblower kind of. 146 00:25:02,000 --> 00:25:13,000 It's really interesting to hear how the law itself may characterize whistleblowers in these extreme binaries. Conventionally, we think of the press or the public that pushes us forward. 147 00:25:13,000 --> 00:25:27,000 But regardless of who drives it, it seems that much emphasis is put on the whistleblower, rather than the actual content of their disclosure. Are there any legal mechanisms at the moment that work to counter this? 148 00:25:27,000 --> 00:25:46,000 I think with the European Directive, because of having so much experience and awareness and there were a lot of fantastic nonprofits that were being involved in driving the conversation around it. There are certain provisions within the directive that try to sort of say it should be about the disclosure itself. 149 00:25:46,000 --> 00:25:58,000 I'll give you one example. That is, do we ask for the motivation of the whistleblower or not? Because one way we vilify whistleblowers is by sort of asking, why did you blow the whistle? 150 00:25:58,000 --> 00:26:21,000 As if assuming that if I have a bad motive, I didn't like my boss, I'm against this government, I'm against this party, I'm against this group of shale order or the CEO, whatever have you, it will seem to want to discredit you because using that sort of possible negative or dubious motive in order of saying that what you've disclosed actually is irrelevant. 151 00:26:21,000 --> 00:26:29,000 So all you really wanted to do is have a bad reputation for this company, perhaps, for example. 152 00:26:29,000 --> 00:26:49,000 What the directive does is it tries to sort of say, no, you should have some reasonable belief that what you're reporting on is true and that it falls within the directive that it is a possible suspected wrongdoing or something that is a suspicious wrong potential breach of law behavior, because it has to have some sort of component within that. 153 00:26:49,000 --> 00:27:07,000 So as long as you've done this, whether you had a bad day and you woke up sort of feeling, well, today I decided to report on this, or your motivation was because I don't like this particular manager so much, those are irrelevant considerations around whether we accept the content. 154 00:27:07,000 --> 00:27:29,000 So there's one way in sort of saying the content is true, we're going to focus on the content, whether this person reported on this because they don't like their boss, we don't care as long as the content actually that they're doing, that they're putting forward to the public or to the agency or what have you, is actually correct and it is pointing out to wrongdoing. 155 00:27:29,000 --> 00:27:43,000 So I can just be careful because I don't mean to say that there are no constraints whatsoever, that I can simply cause harm, reputational harm to my colleagues or to my superior managers, whatever, or an institution. 156 00:27:43,000 --> 00:27:59,000 It's not the idea, of course, potential known false accusations are not protected and they can even be obviously prosecuted, not within whistleblowing but also within different legal regimes. 157 00:27:59,000 --> 00:28:14,000 So I'm more of the situation where if what I'm reporting on exists is true, then that should matter more than why I chose to put it forward. That's the distinction to me. 158 00:28:14,000 --> 00:28:29,000 Thank you so much for that very clear explanation. I'd like to shift the conversation away a little bit because we've discussed a lot about the importance of protecting whistleblowers, given the values they uphold and the positive contributions they bring about. 159 00:28:29,000 --> 00:28:35,000 But looking on the other end of it, it has to be recognized that disclosure does come with a sense of destabilization. 160 00:28:35,000 --> 00:28:45,000 And that may result in a breaking of trust or at least a significant threat to trust. So how does the law address these concerns? 161 00:28:45,000 --> 00:29:01,000 Indeed, the essential element with these revelations is around trust because we tend to trust a corporation in terms of what service or product they're doing or the government with, as we said, our safety and national security that we discussed earlier. 162 00:29:01,000 --> 00:29:16,000 Okay, I'm delegating this power as a citizen in a democratically elected state around you making sure you're keeping me safe. But here I am discovering these revelations that actually you're wiretapping my phone, you don't have a court order, and you're getting all my data. 163 00:29:16,000 --> 00:29:25,000 This is outrageous. And so in that sense, it is indeed a crisis of trust. Now, what can an organization do or what can a government do? 164 00:29:25,000 --> 00:29:36,000 Well, fix the problem and actually create a process of accountability that works and really provide a confidence in the process of how you're handling things. 165 00:29:36,000 --> 00:29:48,000 And this I have to emphasize is that the core or what sets apart positive organizations and what I would call positive examples of how whistleblowing was handled with negative ones. 166 00:29:48,000 --> 00:30:03,000 Why is that? In every organization, in every individual's lives, even something sometimes will go wrong. You cannot control what all their employees are doing. There might be some corruption, there might be some fraud going on. 167 00:30:03,000 --> 00:30:11,000 The problem actually is not the fact that it took place to begin with. The problem oftentimes is the cover up. 168 00:30:11,000 --> 00:30:20,000 And that's where the lack of trust is happening, because it's one thing that someone intentionally did something wrong or there was some sort of negligence. 169 00:30:20,000 --> 00:30:28,000 The distrust by people, by consumers, by citizens happens even more so when you're intentionally then trying to hide it. 170 00:30:28,000 --> 00:30:35,000 So one way of restoring this trust would be to even begin with have that open culture we talked about. 171 00:30:35,000 --> 00:30:45,000 If you're an organization of, no, we encourage people to talk about problems, they oftentimes don't end up in the press, don't end up in agencies, they're handled internally. 172 00:30:45,000 --> 00:30:55,000 And that what I mean by that is that they're not hidden, but they're solved so much before they become even a bigger problem. Right. So that's one way of actually handling that. 173 00:30:55,000 --> 00:31:09,000 So it very much links very closely to the culture of speaking up and listening that we talked about earlier in the podcast. The second aspect of restoring trust is really holding them that process of accountability. 174 00:31:09,000 --> 00:31:20,000 And here I have to say I really have a fair share of disappointment with a number of cases that we've seen, because whether it's been the Facebook revelation, whether it was Cambridge Analytica, 175 00:31:20,000 --> 00:31:29,000 whether it's all these other things that we've seen too many times, we're not seeing institutions really acting upon these disclosures. 176 00:31:29,000 --> 00:31:38,000 And that can be very disheartening for individuals, because as a potential future whistleblower, you will ask yourself, why should I act? 177 00:31:38,000 --> 00:31:46,000 You're telling me I'm putting everything on the line, but actually when it comes down to something being done about this problem, not much is being done. 178 00:31:46,000 --> 00:31:54,000 Because the number of when I interview whistleblowers, okay, so why blow the whistle? 179 00:31:54,000 --> 00:31:59,000 They do it a lot of time with a conviction that something should be done about this problem. 180 00:31:59,000 --> 00:32:11,000 But if we keep signaling that we don't do enough about the problem, I think in the long run, the law will not succeed in creating the trust for the whistleblowing channels to be used. 181 00:32:11,000 --> 00:32:20,000 So I would conclude in saying the trust is a two-way route. If there's trust enough inside an organization, the person will report internally. 182 00:32:20,000 --> 00:32:25,000 There will be this culture around solving problems very much more early on. 183 00:32:25,000 --> 00:32:34,000 And in that sense, trust also from consumers and the public that, okay, this organization takes them seriously and they act upon it. 184 00:32:34,000 --> 00:32:43,000 That is being done after we have the revelations, even if there's some destabilizing, as you said, for short term. 185 00:32:43,000 --> 00:32:48,000 In the long term, we have much more restoration of trust. 186 00:32:48,000 --> 00:33:02,000 You've raised some really interesting points in terms of what mechanisms should be in place to make an organization truly responsible or truly accountable to the public, whether that's as citizens or as consumers. 187 00:33:02,000 --> 00:33:12,000 But I'm curious to explore a bit more how these duties diverge in the sense that the duty to citizens seems quite inherent in the functioning of any democratic society. 188 00:33:12,000 --> 00:33:17,000 But where we shift to the private sector, those duties don't seem as intuitive. 189 00:33:17,000 --> 00:33:21,000 What would be the more legal perspective to this? 190 00:33:21,000 --> 00:33:46,000 We're living in a time where making the distinction around public and private power in which the law traditionally organizes itself and therefore has different principles in terms of how a state should be organized versus how corporations should be organized, to whom is the state sort of accountable and state institutions and to whom is a corporate board, a CEO accountable to. 191 00:33:46,000 --> 00:34:15,000 And increasingly what we have seen in the very complex world we live in, that this such a pure divide, conceptual divide, one could say of the law between public and private power, in practice, the challenge is that these are so sometimes can get intermingled, that dividing the line in that manner, as you're saying, indeed, is creating sort of on the one hand, you could say, well, logically, yes, a corporation is indeed there to make profit. 192 00:34:15,000 --> 00:34:18,000 Like that's the reason of existence was the problem with that. 193 00:34:18,000 --> 00:34:37,000 But if that same corporation is at the same time impacting democratic elections or a massacre or ethnic cleansing or disruptions in a society of that scale, then we're not necessarily, we're talking about consequences that are not corporate consequences. 194 00:34:37,000 --> 00:34:43,000 There are very much consequences for democracy, for public accountability for citizens. 195 00:34:43,000 --> 00:34:53,000 And there I do agree very much that we are in a phase right now, I think, generally, of rethinking a little bit more what law can do. 196 00:34:53,000 --> 00:35:10,000 And I think the question that is very much worth exploring for anyone actually who wants to think more in research terms, whether that's a PhD, a bachelor thesis, a paper, for class, whatever, would highly actually encourage to look into these questions, which are incredibly topical. 197 00:35:10,000 --> 00:35:24,000 In light of the limitations that feels like antitrust have and competition rules in terms of how do we actually organize corporate governance, that that corporate governance, do we redefine accountability? 198 00:35:24,000 --> 00:35:29,000 And do we take some sort of a notion around public interests within that as well? 199 00:35:29,000 --> 00:35:34,000 And in that, what role do employees would role an employee that blows the whistle should have? 200 00:35:34,000 --> 00:35:43,000 I would caution against using the word duty to blow the whistle because to be very clear legally, one is not legally obliged to blow the whistle. 201 00:35:43,000 --> 00:35:52,000 But one could say, and there is indeed a lot of literature, especially more from ethicists, is there a moral duty somehow in doing that? 202 00:35:52,000 --> 00:35:56,000 And what are the consequences if one doesn't do that? 203 00:35:56,000 --> 00:36:05,000 And there's a lot of interesting research in that regard, I guess, to the bigger question of what is the role of the individual in an organization? 204 00:36:05,000 --> 00:36:08,000 Why do we act? Why should we act? 205 00:36:08,000 --> 00:36:16,000 And then if we indeed do so, to what extent we in return deserve to have some sort of protections? 206 00:36:16,000 --> 00:36:18,000 Thank you for that response. 207 00:36:18,000 --> 00:36:31,000 I mean, it's really interesting to hear about how this kind of area of law doesn't stay within its own bounds, so to speak, and even beyond that, you know, interacting with concerns of ethics and philosophy and even sociology. 208 00:36:31,000 --> 00:36:36,000 Of course, at the Oxford Undergraduate Law Journal, there's a lot of that as well. 209 00:36:36,000 --> 00:36:43,000 So I was just wondering whether you had any recommendations for those keen to kind of extend their exploration of this topic, 210 00:36:43,000 --> 00:36:48,000 whether it be through books, websites, videos, even podcasts, whatever. 211 00:36:48,000 --> 00:36:51,000 Where could you direct our listeners to? 212 00:36:51,000 --> 00:37:00,000 Yes, well, the one podcast for anyone who all of a sudden after listening to today's podcast became sort of so much more enthusiastic about whistleblowing as a topic. 213 00:37:00,000 --> 00:37:06,000 There's the podcast that I co-established with another nonprofit. 214 00:37:06,000 --> 00:37:08,000 Shameless self-plug. 215 00:37:08,000 --> 00:37:23,000 Sorry, sorry, but it is, to my knowledge, and my modus not well, I wouldn't I wouldn't I don't think I haven't checked read most recently, but to my knowledge, I don't think there is another dedicated podcast whistleblowing, but the podcast is whistleblowing now and then. 216 00:37:23,000 --> 00:37:26,000 And I guess if you're listening to a podcast, you maybe like podcasts. 217 00:37:26,000 --> 00:37:29,000 So that's an easy entrance to the topic. 218 00:37:29,000 --> 00:37:39,000 I think, well, actually, we mentioned Hogan quite a bit. I do think her book gives an interesting insider perspective in terms of how that dynamic and how those decisions work. 219 00:37:39,000 --> 00:37:47,000 The Crisis of Consciousness is another book by author Tom Miller who really explores the multifaceted of this sort of topic. 220 00:37:47,000 --> 00:38:08,000 Academic professor Kate Kenny writes very interestingly on sort of a whistleblowing like a new theory and takes on a perspective sort of from a more also kind of using feminist theories and understandings around non-traditional way and looks at the sector of finance in particular and there's a lot of interviews. 221 00:38:08,000 --> 00:38:19,000 So I would encourage a lot of listeners who also want to deep dive in a particular sector whistleblowing that can definitely be something that's relevant. 222 00:38:19,000 --> 00:38:36,000 And there's a bunch of articles I think one that potentially if you're more curious as a listener, not only just as a law, but also, you know, generally, why would someone do this sort of thing it sounds crazy sometimes that, you know, you just go out there and kind of blow the whistle. 223 00:38:36,000 --> 00:38:50,000 And why we act is the name of a book that I think tries to explore really why do individuals act and sort of how can we become what the author calls moral rebels and how important moral rebels are in society. 224 00:38:50,000 --> 00:38:56,000 So if you want to be a bit of a more of a rebel in a moralistic sense, go go read that as well. 225 00:38:56,000 --> 00:39:04,000 Thank you so much for that and I just wanted to say again how much of a privilege and also just a joy it was to have you on our podcast. 226 00:39:04,000 --> 00:39:10,000 It's been an absolute pleasure and I hope I hope to hear from your listeners and do reach out.