Condemn Silence. Honour the Whistleblower? The Emergence of

Transcription

CONDEMN SILENCE
Honour the Whistleblower?
The Emergence of Internal Whistleblowing Schemes Within a Quest for Transparency
E.E.M. Sips - Amsterdam June 2009
Master thesis Evita (E.M.) Sips ([email protected])
Erasmus University Rotterdam, The Netherlands
College Year: 2008- 2009
Faculty: Law and Criminology
Master: International and Comparative Criminology
First Corrector: Prof. Dr. H.G. v.d. Bunt
Second Corrector: Drs. Karin van Wingerde
“All relationships of people to each other rest,
as a matter of course, upon the precondition that they know something about each
other 1”.
“(…) each person is responsible for the strength
or weakness of his/her own conscience and for the corresponding degree to which
his/her conscience is vocal or silent, attentive or unresponsive, seeing or not
seeing 2”.
Simmel, G. (1906) The Sociology of Secrecy and of Secret Societies. In: The American
Journal of Sociology. Volume XI (4), pp. 441- 498
2 Bird, F.B. (1996) The Muted Conscience. Moral Silence, and the Practice of Ethics in
Business. Quarum Books: Westport & London, 144
1
Contents
INTRODUCTION
9
1. THE CONDEMNATION OF SILENCE
15
Introduction
15
1.1 Bottom-Up: The Emancipated Citizen
17
1.1.1
New Perceptions on Risk, Uncertainty and Security
1.2 Top- Down: Transparency Through Responsibilization
18
22
1.2.1
A Process of Responsibilization
22
1.2.2
Reporting as Responsive Action
23
1.3 The Boundaries of Transparency
26
Concluding Remarks
31
2. THE INTRICACY OF SILENCE
Introduction
The Bystander, the Witness and the Whistleblower
2.1 Silence as a Form of Bystander Paralyze
2.1.1 The Rational Motivations for Non- Action
2.2 Circumstances Unique to the Whistleblower Circumstances
35
35
36
37
39
43
2.2.2 The Pressure of Ties
44
2.2.3 Organisational Structure
46
2.2.4 The Unwanted Message
48
Concluding Remarks
3. A HISTORY OF WHISTLEBLOWING LAW AND PRACTICE
50
55
Introduction
55
3.1 The US Cradle
56
3.2 The US Exports Whistleblowing
60
3.3 The UK Public Disclosure Act (1998)
62
3.4 The Netherlands and the Whistleblower Debate
64
3.5 The Rest of the World
67
Concluding Remarks
68
4. CORPORATE GOVERNANCE AS WHISTLEBLOWING BOOST
71
Introduction
71
4.1 Sarbanes Oxley Act (2002)
72
4.2 The Whistleblowing Hotline Practice Spreads
75
4.3 Internal Whistleblowing as Responsibilization
77
4.4 The Internal Reporting Procedure
80
4.5 (Local) Issues with Whistleblowing Practice
83
Concluding Remarks
87
Textbox 1: An Example of an Internal Whistleblower Program
89
5. THE ‘WHISTLEBLOWING’ SHIFT
93
Introduction: Chinese Taxi-Drivers Blowing the Whistle
93
5.1 “Whistleblowing”: New Shades of Meaning
96
5.2 Blowing the Whistle, Whistleblowing and the Whistleblower
104
5.2.1 A Second Meaning of “Whistleblowing”
104
5.2.2 Still a “Whistleblower”
105
5.2.3 The Users of the Integrity Hotline
110
Concluding Remarks
111
CONCLUSION
115
BIBLIOGRAPHY
123
Introduction
I can still picture him, sitting next to his empty swimming pool 3. He had just
arrived at the premises of his impressive villa in his shining red sports car. It
was all captured on camera. The reporter asked him about his friends and
social network. He responded that he didn’t have one friend left, neither could
he speak of any social network. A job was impossible for him to find. “He” is a
former whistleblower. Through the US False Claims Act he received an imposing
share of the retrieved sum. He is a rich man, financially speaking.
Lately, transparency seems to be the magic word. Transparency as a
instrument to get grips on the past, the present and most important: the
future. Silence is being condemned. Transparency to beat silence is the new
way to proceed. Sometimes I wonder how deep this transparency quest really
runs and what we can expect to gain from it. Past and present show us time
and time again that massive silence as a form of non-action lies at the heart of
3
TV documentary ‘Klokkenluiders in de kou’ Nova Zembla 20 April 2008
Introduction
human nature. Silence seems to be one of those things which is despicable on
others, but perfectly understandable on oneself. One other thing which makes
me wonder about the true nature of the transparency quest, is the attitude
against and the treatment of whistleblowers. We hate silence, but can we
actually say we love the one breaking the silence, the whistleblower?
Within the middle of these queries – and needless to say without any
intent – I started working with the private company People Intouch. People
Intouch developed the SpeakUp system which facilitates (anonymous) dialogue
with ‘whistleblowers’. This system can be put in place by any organisation
that wants to set up a low threshold internal reporting channel as
requirement of the applicable (corporate) governance legislation. It is part of
the internal early detection policy for minimizing financial, personal and
reputational damage. When I started working at People Intouch, almost two
years ago, my intention was to work there for two or three days a week;
making some money while working on finishing my studies of Criminology.
People Intouch made me part of a great team. From the moment I started
working at People Intouch, I saw cases coming in from all over the world and,
as an anthropologist, I immediately got fascinated with the practice of
whistleblowing. I started getting deeper into the subject and soon got
convinced that my presence at People Intouch had not been a coincidence; I
decided to write my thesis on whistleblowing.
My initial research plan was beautiful (I believe). One of the
multinationals that is serviced by People Intouch offered me entrance to their
organisation. I would use my favourite method of field work and qualitative
interviews to indicate regional and/or cultural differences in signalling and
responding to wrongdoing. I would compare a European and a Latin American
business unit. Unfortunately and unexpected, my entrance was closed, for
perfectly understandable and honest reasons. Who knows, maybe one day I
will get another chance to carry out the research plan. The preliminary work
had not been a waste. It had given me the chance to go into the subject and
more importantly, to discover my blind spots when it came to my knowledge
on whistleblowing. Plan B was hence not so difficult to come up with. I wanted
to give myself the opportunity to enlarge my understanding of the theme and
have a clear idea about the current state of affairs and the controversies. Even
more, I want to be able to answer questions which have been present in the
back my head ever since I started working at People Intouch. My last objective
is try to create clarity on the subject whistleblowing, since – I have noticed –
the term has started to shift and is causing confusion.
A red line in this work is the type of story I started my introduction
with. The False Claims Act (US 1863) is the eldest whistleblowing legislation
put in place as anti- corruption tool. In the light of a continuous quest for
transparency, we have seen spurring initiatives for reporting. Do nothing and
[10]
Introduction
look the other way appears to become less acceptable. All is good in order to
create perfect transparency. The paradox thing is, and I said it before: we hate
silence, but can we actually say we love the one breaking the silence, the
whistleblower? What is it about the whistleblower that tends to make our skin
crawl? It is my fascination with this transparency-whistleblower paradox,
which shapes the basis of this work and is one of the three main queries that
that I will address. The three enquiries are:
What is the origin of the ‘whistleblower’ paradox?
What are the weaknesses of the transparency quest?
To
what extent has
the
transparency
quest altered the
meaning of
‘whistleblowing’?
Outline
Chapter 1 will examine an observed growing condemnation of all sorts of
silence. Silence is viewed upon as the enemy of transparency and within all
aspects of life we are seeing a call for freedom of information and voice.
Citizens are asked to participate in creating a state of freedom of information.
They are the ones who can point at hidden risks of our contemporary society;
conventional control mechanisms are not suitable anymore. Subsequently, we
are observing a reporting revolution. Numerous means,
policies and
agreements are put in place in order to kindle the silent witness. Points for
reporting incidents are growing like a weed. Within the reporting revolution
silence as a form of bystander paralyse is no longer tolerated; the silent
witness is almost as much to be blamed for passed disaster as the
perpetrator.
Chapter 2 will focus on the complexity of patterns of silence. Silence as
a form of non-action is everywhere around us and takes place daily on all
levels. Silence is a rather sticky problem. Silence becomes even more
persistent in situations whereby the witness is connected to the perpetrator
environment. Within this situation it would almost be foolish if the witness
would step up and voice; reprisal is on the lure. This is what I will identify as
the ‘whistleblowing’ situation, opposite to the ordinary bystander situation
where in the witness is an outsider of the perpetrator environment.
We can only fairly expect that the tendencies described above have an
effect on whistleblower protection and policies. These type of whistleblowers
are crucial witnesses, since key to the whistleblower situation is that he finds
himself in a situation full with co-muted witnesses. That shared state of
silence indicates a further binding with the perpetrator environment, creating
another threshold to speak up. These stubborn patterns of silence can be
[11]
Introduction
expected to be dealt with within the society’s transparency quest. In chapter 3
I will describe the history of whistleblowing protection, which not surprisingly,
started in the US. From there, it slowly found its way to the UK and other
parts of the world. The field of the whistleblower remains interesting in a way
that it confronts us with the question how deep the societal quest for
transparency runs. Many national authorities remain hesitant with getting
adequate whistleblower protection in place. It is as if we are saying:
‘Whistleblowing and whistleblowers are okay, but not in my backyard’. A
society scorning both the ‘muted’ as the ‘loud’ at the same time, seems a
unhealthy condition, difficult to uphold.
Chapter 4 will portray how corporate governance meant a boost for
whistleblowing practice. As with all whistleblowing activity, the corporate
whistleblowing practice started in the US where it had already been
recommended by the Sentencing Guidelines in the 1990’s. As a result of
corporate scandals at the start of the new millennium, Sarbanes Oxley (2002)
meant a turning point. Secure and anonymous whistleblowing channels where
now obligatory for listed companies. This line was followed worldwide both by
national corporate governance codes and by an accepted and necessary ‘good
business practice’. Through these practices Europe came acquainted with new
and spurring whistleblowing practice. The corporate world is taking the
leading role when it comes to putting the transparency quest in practice on
the field of whistleblowing.
In chapter 5 I will argue that “whistleblowing” has gotten new shades
of meaning as a result of the new reporting tendencies. I will claim the
existence of a ‘conventional blowing the whistle framework’: a media made set
of conceptions on whistleblowing. Within that framework attention when to
the person the whistleblower; a hero or fool. Literature, mythology and
contemporary media give ample examples of personages which can be
classified as individuals who spoke up about an ‘open secret’. Time and time
again the conditions that compose these whistleblower stories appear to be at
the heart of human nature, so we probably have not seen the end of these
stories. What we have seen over the past years, is the appearance of new
category of whistleblowing tales. These stories do not fit the script of the
conventional whistleblowing stories; other features have come to play an
important role. In these new tales whistleblowing is portrayed as an ‘organised
tool for disclosure’ rather than an ‘individual act of disclosure’. I will argue
that with the coming of these new tales, the meaning of the term
‘whistleblowing’ has started to shift. At the end, I will respond to the question
whether we can still talk about a whistleblower within the new framework.
[12]
Introduction
Methodology
I already explained that my main objective for this work is to enlarge my
knowledge of the theme and to try to create clarity on questions which are
central to the whistleblowing debate. Therefore, it is no surprise that I based
this work mainly on literature. For chapter 1, I used the modernisation theory
of Inglehart and Welzel to describe the bottom-up call for more information
and empowerment. Their framework will be complemented by the notions of
sociologists Beck and Pieterman on the changing conceptions on risk and
security. The criminologists Garland and Erickson further help elucidating
how these notions effected crime policy. In the Culture of Control, Garland
points out the responsibilization strategy, a concept which I will use to explain
the new reporting tendencies which we have seen as part of the quest for
transparency. The work by George Simmel turned out to be of great value to
this thesis. His classical work on secrets and secrecy (1906) sheds critical
light on the expanding transparency quest. Also in chapter 2 it are the ideas of
Simmel which, according to me, lead us exactly to the essence of the
whistleblower’s experience.
Chapter 2 goes into the complexity of breaking with silence. Non-action
is often the chosen road for many bystanders. The reasons are so very logical
when you think of it. Observations of your own behaviour would be best to
demonstrate this. Obviously, when we are writing about the causes of silence,
we are dealing with a methodological difficulty: how do we get to those persons
who remained silent? Especially those who are still part of the environment
which shaped the conditions for silence in the first place. And even though it
is tempting, we should not make the mistake of taking the conditions which
we found with person who did speak up, put them in reverse and apply them
onto the muted masses. Therefore, retrospective research and anonymous
surveys are the methods we have to rely on when dealing with the complexity
of silence. I have used this existing academic research in chapter 2.
Unfortunately, surveys do not give us much profound information about the
reasons behind silence. I used the work ‘The Muted Conscience’ about
speaking up in organisational surrounding by Bird, a professor of comparative
ethics, to fill in this gap. Chapters 3 and 4 in which I describe the
development of whistleblower law and practice, is the result of a combination
of pre- knowledge, personal observation, academic readings, reports and
recommendations, legal texts and news items. The field of whistleblowing
practice is constantly changing and hence academic reading would not be
sufficient to give an adequate picture.
The second method that I have used, I already just mentioned it, is of
more empirical nature. Though this work is not structured around empiric
data research, it does find its roots in my personal observations over the last
two years. Since I started working professionally in the field of internal
whistleblowing, I have been in a phase of permanent observation. I have
[13]
Introduction
spoken to many actors about ‘whistleblowing’, both professionally and
personally. This permanent ‘research’ shapes the main queries of this thesis.
Furthermore, it is that experience which allowed me to write about the
developments of corporate whistleblowing schemes in a more profound way. It
would have been impossible for me to write chapter 4 based solely on
literature. It were also my personal observations and discussions which made
me argue about the shifted connotation of the term ‘whistleblowing’, which I
will put forward in chapter 5.
[14]
1
The Condemnation
of Silence
INTRODUCTION
Silence is a hot topic. Silence of all forms is a stubborn virus, for which
transparency is the prescribed vaccine. Historical muted incidents, clouding
the collective memory, are no longer acceptable. What really happened during
the Stalin regime? What happened to the German women who were in Berlin
at the end of WWII? Where are the missing sons of the Argentinean Videla
regime? Today (April 8th 2009) former Peruvian president Fujimori was found
guilty and sentenced to 25 years in prison on charges of murder and
kidnapping. This is the first time that a Latin American head of the state gets
sentenced for deviant actions under his responsibility. Societies and
ethnicities have - and claim - the right to an official memory without silenced
pieces. Collective memory and recognition for collective sorrow is now more
explicitly part of ethnicity than ever. The explosive growth of truth and
reconciliation commissions, originated in South Africa, is a manifestation of
Chapter 1 The Condemnation of Silence
this urge for openness. Above all, we are most appalled with collective silence
about disaster and atrocity. In this respect the use of the phrase ‘conspiracy
of silence’ is popular in the media 4. Silence as a form of non-action is being
scorned. In the past years we have seen the rise of scrutiny of former
incidents of silence, often massive silence. Why did the Dutch UN soldiers just
stood there and did nothing when general Mladić took over Srebrenica and
deported and killed 8000 Muslim men? Why was their not one care taker in
the care chain who spoke up, and with that would have prevented the tragic
death of Savanna 5? Silence has become the battlefield for the debate on
irresponsible behaviour of societal actors. Just now, a former victim of a
Loverboy 6, sued her formal high school for not having responded to the
apparent red flags. Instead of raising alarm when the girl skipped numerous
of classes combined with the pre- knowledge that Loverboys were active in the
area, the school decided to turn a blind eye. We can observe that this type of
behaviour is being morally disapproved to a greater extent. A process towards
more openness and a condemnation of silence seems to been going on for
some time now. This process was inflamed by the further development of the
emancipated citizen; more knowledgeable individuals and interest groups are
now part of decision making processes. Simultaneously with the human
development process, new perception on risk and security came into play.
These changes have led to a bottom-up drive for more transparency and the
dismissal of silence. I will address this in paragraph 1.1. The quest for more
transparency has further been stirred up by the authorities who feel the
pressure to answer to the new demands of the masses. The authorities, being
responsible for providing security, introduce means and technologies in order
to structure the transparency and get grips on hidden risks. This top-down
force to create transparency, as a sort of ‘cry for help’ of the authorities, will
be addressed this in paragraph 1.2. The transparency quest seems to be
winning grounds. The transparency demand, originally tied to the public
domain, appears to expanding its territory into the private domain. Can we
talk about a transparencyquest, a term I have used already? If so, what are
the boundaries of transparency? Paragraph 1.3 examines this last query.
At least, in the Netherlands.
In the year 2004 the Dutch toddler Savanna was found dead in the trunk of mother’s
car, abused, malnourished and heavily neglected. Savanna had been under
surveillance of the responsible authorities. There had been many signals of the
condition of Savanna, but no action was taken.
6 The term which is used in the Netherlands for youngster pimps who seduce teenage
girls with love.
4
5
[16]
1.1
BOTTOM-UP: THE EMANCIPATED CITIZEN
The time of citizens as mild muted subjects disappeared with modernity, or
even more so with post-modernity. The political scientists Inglehart and
Welzel 7, picked up where the classical sociologists of modernization stopped.
They continue the linear modernization process, describing how social
modernization shaped a human development process. They describe the
emergence
of
knowledge
industrialization,
which
society,
brought
the
successor
rationalization,
of
the
process
secularization
of
and
bureaucratization. The knowledge society brings us: “(…) another set of
changes that move in a new direction, placing increasing emphasis on
individual
autonomy,
self-expression,
and
free
choice.
Emerging
self-
expression values transform modernization into a process of human
development, giving rise to a new type of humanistic society that is
increasingly people- centered 8”. According to Giddens, late modernity created
an individual which is highly self-reflective. The late modern individual is
constantly occupied with questions about the future and about which choices
to take. The amount of freedom leads to constant self- reflexivity about
identity and life style. These individuals want to act out – or better empower according to these chosen life styles 9. Societal groups have united and
searched for emancipation. Citizens interest groups unite to claim their rights
and find ways of self-expression (blacks, women, gays). After the phase of the
emancipation of certain groups, we are now observing the next phase whereby
political self expression becomes a value in itself and not just a way to attain
specific goals 10. Mass media and other forms of communication means,
mainly the internet, give all people easy access to all sorts of information 11. On
the net you find networks where you can turn to find information about any
issue. Power comes with knowledge and today’s citizens can easily exercise
this privilege.
Within the field of crime policy, we have also seen the reflection of the
emancipation of societal groups. In contrast to classical justice system where
the victim was long invisible, the rights-based victim movement which
emerged in the 1960’s and 1970’s in the US, demanded a reorientation of the
criminal justice system to take account of the needs and rights of victims 12.
Victim support initiatives started with the conventional crime victims, like
victims of burglary and robbery, but soon also spread to the area of domestic
7 Inglehart, R. & C. Welzel (2005) Modernization, Cultural Change and Democracy
(Cambridge University Press: Cambridge)
8 Ibid., 1
9 Heaphy, B. (2007) Late Modernity and Social Change. Reconstructing Social and
Personal Life (Routledge: London), 98-102
(Cambridge University Press: Cambridge), 44
11 Ibid., 29
12 Zedner, L. (2002) Victims. In: (Maguire, M., R. Morgan & R. Reiner eds.) The Oxford
Handbook of Criminology. Third edition, (Oxford University Press: Oxford), pp. 419455, 432
[17]
violence. The appearance of the victim came with ‘telephone help-lines’:
telephone numbers which victims can call for advice and support 13. The victim
was empowered within the justice system, which marked a key moment in the
history of crime policy. Next to the state and the perpetrator, this third player
entered the process. “The new political imperative is that victims must be
protected, their voices must be heard, their memory honoured, their anger
expressed, their faces addressed 14.”
The human development tendencies that Inglehart and Welzel
describe, also occurred within the corporate world. Employee participation is
being granted through corporate and labour law. Also less formal but just as
powerful, employees are increasingly becoming emancipated participants in
the day to day processes. Routine work has been taken over by computers and
machines the employees in the knowledge sector experience individual
judgment and choice 15. The maintaining rise of education has made citizens
and
employees
more
knowledgeable
and
intellectually
independent.
Autonomous decision-making is now part of the work experience. As a result,
the corporate employee has become an important stakeholder for the
company 16. Every employee has the right to free speech, it is: “(…) a condition
of existence, which entitles one to express one’s thoughts as one sees fit 17”.
The employee’s claim for a good working environment, can function as a
control mechanism for corporations to be a social responsible entity.
Citizens, either through individual or collective action, find themselves
democratised in the sense that they can participate and voice in order to gain
self-fulfilment; ‘empowerment’ appears to have become a vital element of the
contemporary western citizen. Empowerment means participation in decisionmaking in all aspects of life. In the next paragraph I will discuss ‘insecurity’
as one of these aspects of the contemporary experience. There exists a bottomup urge to participate, cooperate and voice in collective structures which
create the individual experience.
1.1.1
New Perceptions on Risk, Uncertainty and Security
Essential to the shifting focus of the modern individual, is the altered security
of the human conditions. In the Western world, we reached the state of
‘existential security’: a state wherein the physical survival can be taken for
Ibid. 434
Garland, D. (2001) The Culture of Control. Crime and Social Order in Contemporary
Society. (Oxford: Oxford Press), 11
16 Swartz. P. & B. Gibb (1999) When Good Companies do Bad Things. Responsibility
and Risk in an Age of Globalisation (John Wiley & Sons: Canada)
17 Duska, R. (2007) Contemporary Reflections on Business Ethics (Dordrecht:
Springer), 171
13
14
[18]
granted because all basic needs are secured 18. The survival values, which led
to group preservation, are now being replaced by individual autonomy, which
leads
to
self-expression
values;
“(…)
the
shift
from
materialist
to
postmaterialist priorities – a shift from giving top priority to economic and
physical security, to self-expression and the quality of life 19”. According to
Inglehart en Welzel, self-expression is inherent to human nature; the only
thing which holds this back is physical insecurity 20. As a result, other
preoccupations came to shape notions on security. Now that the physical
security is taken care of, all possible threats to the value of self-expression are
to be eliminated as prerequisite of modern life. It is a “security paradox 21”,
whereby according to the level of guaranteed external security, humans
tolerate less other forms of insecurity. The traditional existential security,
which was primarily aimed at individual survival, is now replaced by a more
humanistic risk perception 22. The risks of postindustrial society are abstract,
not about immediate threat to individual survival. Above that, many people in
today’s society have the time, the education and the information to
understand
the
risk
that
techniques
of
modernization
bring 23.
The
emancipated human can now easily access knowledge about new risks of
society, which leads to an increased awareness of risk.
The rationality of modernity did not bring the control, certainly and
order that we aimed for. While explaining Giddens, Heaphy underscores that
the reflexivity of modernity comes with the awareness that what is thought to
be true today may be undermined by new knowledge tomorrow 24. Heaphy
points at a somewhat double layered consequence of rationality on the
human’s world view. In first instance rationality caused de-mystification of
pre-modern bases for authority, like religion, myths and monarchy. This
leaves a gap in the sense of world order and security, which rationality was to
fill. However, in second instance, late modernity 25 causes rationality to
question itself. “In doing so, the latter promotes a culture of radical doubt
where all kinds of knowledge […] are only valid until further notice […] Reason
has been the source of institutionalized doubt 26”. This is the basis of
increased levels of security and new forms of risk, the basis for the so-called
risk society.
Ibid., 28
Ibid., 33
20 Ibid.,139
21 Huls, N. (1997) Discussing Evers and Novotny In: Recht in de risicomaatschappij.
Rede uitgesproken bij de aanvaarding van het ambt hoogleraar Recht en techniek (Delft
University Press: Delft)
22 Ibid., 33
24 Heaphy, B. (2007) Late Modernity and Social Change. Reconstructing Social and
Personal Life (Routledge: London), 76- 78
25 Same as post-modernity
26 Ibid.
18
19
[19]
The new forms of risk that came with modernity are all associated with
‘man-made’ products of modernity 27. Heaphy mentions: nuclear or chemical
warfare, human intervention in the material environment, financial and
investment markets, food production, air travel and energy generation. Within
the field of crime prevention, the risk of terrorism can be mentioned as a new
risk. All these ‘man-made’ products are unwanted side products of modernity
and lead to an intensified and global risk, and furthermore an intensified
attention to the risk 28. They all call for an approach on global level. The new
global environment with mass media and electronic communication enables
people to come together in the light of the common uncertainties they face 29.
Risk and uncertainty have become global issues. We see this at this very
moment as well. A few days ago the outbreak of the Mexican flew was
discovered. Within no time we have seen local and global responses and
cooperation to the feared upcoming pandemic.
Within Beck’s risk society there is a problem of growing dispersed
responsibility. Instead of the individual who is to blame for harm – which was
normal in the times prior to the risk society – blame is now something which
lies with the collective 30. In the end no one is responsible. Beck wants to tackle
the problem of ‘organised irresponsibility’ by creating new forms of direct and
decentral politics, which he calls subpolitics. Subpolitics refer to the return of
the individual in politics; other actors who can have a better view on potential
risks. For Beck, the risk society poses new perspectives on responsibility and
decision making, which will stimulate new societal coalitions 31. These new
coalitions are necessary to regain transparency on the new risk that
organisations take and create. Conventional watchers and controllers are not
suitable anymore to detect risk and danger. In risk society local groups or
individuals, like whistleblowers or scientist, are better equipped to smell the
danger and strive for action 32. According to Beck, the starting point of the
further development of society lies with the mobilisation of repressed
knowledge and possibilities which are dormant available within the existing
groups and institutions 33. Beck calls this ‘institutionalized individualism’.
Risk and uncertainty have moved to the core of criminological
theorizing and crime control 34. According to Erickson crime control is the field
Ibid., 79
Ibid.
29 Ibid., 77
30 Pieterman, R. (2008) De voorzorg cultuur. Streven naar veiligheid in een wereld vol
risico en onzekerheid. (Den Haag: Boom), 51
31 Ibid.,34
32 Ibid., 35
33 Ibid.
34 Loader, I. & R. Sparks (2002) Contemporary Landscapes of Crime, Order and
Control. Governance, Risk and Globalization. In: (Maguire, M., R. Morgan & R. Reiner
eds.) The Oxford Handbook of Criminology. Third edition, (Oxford University Press:
Oxford), pp. 83- 111
27
28
[20]
in which the authorities can demonstrate their imagined control, through
criminalization. “Criminalization occurs in relation to an expending array of
harms that are viewed as involuntarily imposed and as having severe
consequences. It engulfs not only those judges responsible for harm, but also
those deemed responsible 35”. Since other contemporary risks are even more
uncertain, the criminalization has become ‘the way of expressing authoritative
certainty 36’. We have seen, for example, the expansion of surveillance
techniques in various sorts 37; sorts you cannot even imagine. Just yesterday
the news portrayed the so-called 'cannachopper’; a unmanned small chopper
which can supposedly smell and see cannabis. This new tool in the struggle
against cannabis looked like it just came out of a James Bond movie. In
reference to the growing surveillance as a mean to address uncertainty,
Erikson speaks of ‘the house of certainty’: “(...) constructed through
architectures
of
observation:
technologies that enable
environmental
designs
and
electronic
vigilance 38”.
According to Pieterman 39, we are nowadays taking it one step further
with risk society. We are living in a ‘precautionary culture’; a culture in which
we are constantly focussing on uncertain threats on the long-term 40. My
father always used to repeat the Dutch saying Prudence is the mother of the
China cabinet to me 41, meaning more or less He is wise that is ware on time.
These
category
of
sayings
are
the
motto
for
precautionary
culture.
Characteristic for the precautionary culture, is the attention for uncertain
threats, which are hardly verifiable or measurable 42. It is about those
disasters which have almost zero chance of occurring, but if they would,
would have disastrous consequences. Within the precautionary thinking, we
can observe a move away from the ‘no one is responsible’ and ‘risk is part of
our society’ thoughts, which characterised the risk society. The precautionary
thinking leads to a return of moral judgement of damage 43. Victimization as a
result of side effects of the contemporary systems is now unacceptable and
should be prevented by those who administer these contemporary systems;
the authorities 44. This new perception on the non-acceptance of victimization
further strengthened the empowered societal position of the victim.
The precautionary principle has found entrance in various fields in life.
Ericson, E. (2007) Crime in an Unsecure World (Polity Press: Cambridge), 206
Ibid., 207
37 Ibid., 205
38 Ibid.
risico en onzekerheid. (Den Haag: Boom)
40 Ibid., 65
41 Just before I took off to some far country, he would fill my backpack with flashlights,
padlocks and pocketknives. For that matter, this lessons about prudence only seemed
to apply to his daughters, not to himself.
42 Ibid., 6
44 Ibid.
35
36
[21]
As a result of the demanding masses, we can observe that the precautionary
principle is increasingly being incorporated in politics. For example, in 2008
the WRR, the Dutch scientific council for government policy published a
report in which it recommends to “accept the paradigm of the risk
perceptions, including the precautionary principle, as starting point for the
physical security policy 45”. It involves proactive dealing with uncertainties,
which asks for early-warning mechanisms, like an adequate whistleblowing
procedure. Every organisation should be set up in a way that uncertainties
can be indicated and tackled at the earliest possible moment.
1.2 TOP- DOWN: TRANSPARENCY THROUGH RESPONSIBILIZATION
In the previous part I described a development of the dismissal of silence. On
the one hand we saw the rise of the further democratised human being: the
emancipated participating citizen. On the other hand we saw that with these
changes, new conceptions of security and risk came into play. These
conditions led to a bottom-up call for transparency. In the next part I will
discuss how these new ideas about risk and security also led to changes in
crime prevention policy, central to which is the top-down call for participation
of societal actors in the early deterrence of crime and non-normative
behaviour.
1.2.1
Several
A Process of Responsibilization
criminologist
have
been
occupied
tackling
with
a
series
of
transformations in crime control policy, which started around the 1970s. The
most striking process is the moving away from the penal welfare-state; “(…)
the institutional arrangements that increasingly characterized the [crime
control] field from 1890s to the 1970s 46.” The penal welfare model points at
the situation whereby crime control is dominated by state institutions like the
police, courts and prisons, with this gaining a ‘pivotal place in the production
of order and security 47’. Key characteristic of penal- welfarism was the
prevailing idea that crime control policy was the exclusive area of experts and
expert knowledge 48. As said, around the 1970s this paradigm became less
self-evident. In the previous paragraph I discussed the changing character of
society and with that new conceptions on risk and security. Risk has moved to
45 WRR (2008) Onzekere veiligheid. Verantwoordelijkheden rond fysieke veiligheid
(Amsterdam University Press: Amsterdam), 18
46 Garland, D. (2001) The Culture of Control. Crime and Social Order in Contemporary
47Loader, I. & R. Sparks (2002) Contemporary Landscapes of Crime, Order and
Oxford), pp. 83- 111, 84
48 Ibid., 85
[22]
the core of criminological theorizing and crime control 49. Furthermore, feelings
of insecurity as a result of the growing awareness of uncertainty, are now at
the centre of crime management.
In his “Culture of Control 50’ Garland outlines twelve indices of the
changing crime policy environment. The one I want to focus on is the process
of ‘responsibilization’; one of the government’s strategies in its schizophrenic
response to the staggering crime numbers. Responsibilization is the approach
whereby the government adapts to the realization that it cannot deal with the
crime problem on its own. Furthermore, with the shifting thoughts about
‘blame and shame’ which go hand in hand with the precautionary thinking 51,
authorities have an incentive to try to act out as early as possible. Therefore,
all societal actors are asked to participate in the crime control policy. Societal
actors, like schools, business, care takers or citizens, are requested to play
their part in making it the world a safer place. Regular citizens are asked to
cooperate on three levels 52. The first on is the participation level whereby
citizens are asked to act in cooperation with the authorities. This is the level
where we can place an initiative like Crimestoppers or the Amber Alert. The
second level is the schooling people about making them less prone to
victimhood. Last week I found a letter in my mailbox of the police, advising me
not to leave any Bluetooth active devices hidden in my car. The third level is
appealing to the citizens’ power as emancipated consumers 53. When it comes
to the corporate world, the business, we saw the emphasis on self- regulation,
whereby corporations were stimulated to take over part of the government’s
responsibility for the enforcement of norm regulations. In a certain way, we
can look at business self-regulation as a double layered process of
responsibilization: the authorities ask help of the business who, on their turn,
ask their corporate citizens for their help. Chapter 5 will address this issue
further.
1.2.2
Reporting as Responsive Action
On April 1st this year, Wouter received an e-mail from the National
Registration of Small Offences. The e-mail said that he had been caught
passing red light and that now his name and his offence showed on their
public website. Shame on you, Wouter! Wouter was flabbergasted. After half
an hour, we indeed told him it was an ‘April Fool’. Was it naïve of Wouter to
Ibid.
Garland, D. (2001) The Culture of Control. Crime and Social Order in Contemporary
Society. (Oxford: Oxford Press)
risico en onzekerheid. (Den Haag: Boom), 41- 61
52 Loader, I. & R. Sparks (2002) Contemporary Landscapes of Crime, Order and
Oxford), pp. 83- 111, 89
53 Ibid.
49
50
[23]
fall for this trap? I believe not; the joke smoothly follows the lines of current
societal developments. We have seen the rise of internet point for reporting
and the internet portrayal of criminals, suspected criminals and presumed sex
offenders. We can search the web and locate their address and their passed
record. Individuals and companies can get registered everywhere, in the worst
case for them, publically on the internet.
I already spoke about the process of responsibilization whereby other
societal actors are becoming part of crime deterrence. The tasks are being
divided among the actors according to resources and capabilities. The crowd’s
participation is confined to the fulfillment of the authorities’ urge to beat
wrongdoing and disaster to the fact, as early as possible. The crowd acts the
part of the anticipator, the early-warner, the foreseer of hidden risks. The
crowd is not asked or stimulated to act out in any other way than to inform
the authorities. The response of the Dutch authorities to the latest observed
rise of bystander non-action, was a campaign which prescribed that
bystanders should call for help at 112 (911) and wait for the police to arrive,
in the meanwhile the bystanders should write down as much information as
possible about the offender(s). Please do not interfere yourself! So, again, the
crowd functions purely as a telescope for the authorities.
Reporting Points, in Dutch “Meldpunten”, have been growing like a
weed. Citizens who witness certain (suspected) incidents can report it at these
reporting points. We have the traditional ones for reporting child abuse 54,
domestic violence or incidents of discrimination 55, which are often accessible
though visit, phone and internet. On the internet you can now find sites where
you can fill in a form to report incident of stalking 56, for reporting bad
drivers 57, reporting sites of child porn 58, or for reporting bad notices on
medicine 59. Changes in laws and policy often come with opening a reporting
point. Online you can file a report on breaches of the new smoking ban in the
hospitality business at the Clean Air Netherland organization 60. For a while
there was talk about opening a reporting point for reporting cyclers who ride
without complying to the rules of lighting. Also, distress after incidents give
rise for a call for a reporting point. Recently the Rotterdam public transfer
(RET) organization decided to open a reporting point where travelers can call
and leave text messages if they see an incident of harassment of subway staff.
After the murder of Theo van Gogh, the City of Amsterdam opened a reporting
point for radicalism. This last one was closed due to a lack of interest. No
54
55
56
57
58
59
60
http://www.amk-nederland.nl
http://www.meldpunt.nl
http://www.centraalmeldpunt.nl
http://www.wegpiraatvanstraat.nl/wegpiraat-van-straat.php
http://www.meldpunt-kinderporno.nl/melden
http://www.meldpuntmedicijnen.nl
http://www.cleanairnederland.nl
[24]
sector seems to go untouched by the call for a reporting point. The Dutch
journalist Linda Polman 61 supports Transparency International’s call for
whistleblowing mechanism in the humanitarian help sector in order to combat
the corruptions which go on. No matter how sacred the sector, openness
through reporting is asked for. It sometimes makes me wonder how long it will
take until the Catholic church opens a reporting mechanism; “Call 0800888888 to report directly to the Pope.”
If you are interested in seeing these reporting points, just type in
‘Meldpunt’ in Google and you will come across millions of reporting points. It
speaks to itself that the new communication means like internet and text
messaging enable setting up reporting points with ease. These points for
reporting can be opened and managed by anyone; not just the authorities.
There are many private, individuals or organizational, initiatives for these
reporting sites. For example, to report an incident of child porn you can either
go to the official website of the police 62, to the site of the foundation against
child porn 63 or to the website of INHOPE 64, where you can find links to all
national reporting points 65. You can say a jungle of reporting points, for all
sorts of incidents, is starting to grow and the consumer needs to be able to
distinguish between these points. Especially the web based reporting sites; the
transparency is bound to get lost. Who exactly is behind these websites, what
happens to the data and what are the possible consequences of my report?
I already gave an example whereby the authorities also make use of
the internet medium to open reporting points. In all spheres of life we are
seeing a rise of preventative surveillance 66. We have seen many developments
which strive at collecting evidence of the witnesses, as early as possible. One
example is the MOT 67, a law which prescribes reporting of unusual
transactions. Also, the Netherlands Competition Authority, following partner
authorities worldwide, have a leniency guideline, whereby the first reporting
participant of a cartel can get full immunity from fines. In May 2008 we saw
uproar about the failing whistleblowing protection; we are waiting for further
steps. I will address this topic in chapter 3. Also in the housing sector, a point
for reporting integrity incidents was just opened in April 2009. The new
conceptions on responsibility and the non acceptance of victimization has also
led to an expansion of the duty to report for professional ‘close to the fire’.
More and more professionals are getting the responsibility to prevent moral
61 Claus, S. (2008) Alle beetjes hulp helpen…of niet? Interview with Linda Polman. In:
TROUW, de Verdieping, 8 november 2008
62 http://www.meldpuntcybercrime.nl/
63 http://www.meldpunt-kinderporno.nl/melden
64 https://www.inhope.org/en/makereport.html
65 So, if you click on “the Netherlands’, you get redirected to the ‘Meldpuntkinderporno’
67 Wet Melding Ongebruikelijke Transacties
[25]
disapproved behavior. Not the father who killed his children is responsible,
but the care-takers who did not see it coming 68. For example, we have just
seen the first ambulance workers getting a duty to report. The ambulance
workers in region The Hague are since April 2009 obliged to report suspicion
of child abuse with the reporting point child abuse.
Probably most famous in the list of reporting developments in the
Netherlands, is the Crimestoppers initiative which came to the Netherlands in
2006 under de Dutch name ‘Meld Misdaad Anoniem’. Crimestoppers is an
initiative which started in the US in the 70’s and crossed over to the UK in the
80’s, where it expanded rapidly and became a success. Citizens can dial the
number and leave their complaint about a suspected crime anonymously. To
give you an idea about the figures (UK): since 1988 91,649 arrests and
charges have been made and 1,060,047 actionable calls have been received 69.
In 2002 the Netherlands opened their version of Crimestoppers, “Meld
Misdaad Anoniem’. Generally, you can observe a positive evaluation or even
appreciation of this tool by the Dutch public.
1.3 THE BOUNDARIES OF TRANSPARENCY
I have already mentioned the word ‘transparency’ several times. Transparency
is a word which seems to be inextricably bound up with contemporary
perceptions on uncertainly and insecurity. Most readers will have a pretty
clear idea about the term. To me, transparency always meant something like
openness, as opposite to concealment. When I ask my friends from Latin
America what attracts their attention when they come to the Netherlands they
all tell me one thing; the way you can just look inside any house when walking
the streets. The curtains are always wide open and some homes do not even
have curtains. My friends thought that was unique to Amsterdam. In the
beginning we made jokes that the absence of curtains in the Netherlands, in
contrast with the shades or absence of windows in Chile, would probably say
something about the levels of transparency in society. It was a quick (and
naive) analysis. But what is ‘transparency’? Especially when we want to judge
whether transparency is a good or a bad thing, we should elucidate on the
term.
According to Transparency International, transparency is: “(…) a
principle that allows those affected by administrative decisions, business
transactions or charitable work to know not only the basic facts and figures
but also the mechanisms and processes. It is the duty of civil servants,
69 Crimestoppers Fact Sheet. Accessible at: http://www.crimestoppers-uk.org/how-wehelp/our-achievements (3 May 2009)
[26]
managers and trustees to act visibly, predictably and understandably 70”. As
we can see in the definition, transparency is put forward as a requirement
that the government, its institutions and its officials have to meet in order to
commit to ‘good governance 71’. Transparency is about citizens’ rights; about
the right to access to government information and the right to know how the
government operates on our behalf 72. This ‘freedom of information (FOI)’ is a
human right; “(…)based upon protection for individuals against inefficient,
oppressive, or even bullying government 73”. In this classical view of
transparency, transparency is a control mechanism of the citizen on the
government. Heald defines this as downwards transparency which exists: “(…)
when the ‘ruled’ can observe the conduct, behavior and/or ‘results’ of their
‘rulers’ 74”. This form of transparency emerged with the creation of the modern
nation
state.
In
1906
George
Simmel
describes
how
the
politics,
administration and justice have lost secrecy, ‘in precisely the degree in which
the individual had gained possibility of more complete privacy 75’. So, in the
classical sense of the word, transparency is a tool for the citizens to control
the behavior of the government. The classical transparency principle applies
to the public domain, not to the private domain. In other words: transparency
meant the opening of the curtains of the decision rooms of the governmental
institutions.
Transparency has grown as a tool to create visibility in order to get
grips on the dangers of today, and more importantly, of tomorrow. The
opening-of-curtains-demand is spreading. Towards the curtains of the
boardrooms of private companies, the doctor’s office, the caretaker’s nursery
and the neighbors’ basements in order to prevent another drama which we
came to know recently in Austria. We are experiencing the growth of upwards
transparency: “the hierarchical superior can observe the conduct, behavior,
and/or ‘results’ of the hierarchical subordinate/agent 76”. Surveillance is a
term which is often used for identifying this upwards transparency 77. The
reporting tendencies which I described in the previous sections are part of
70 Transparency International. Accessible at:
http://www.transparency.org/news_room/faq/corruption_faq#faqcorr2 (2 May 2009)
71 Hood, C. & D. Heald (eds.) (2006) Transparency. The Key to Better Governance?
(Oxford: Oxford University Press) Preface, x
72 Birkinshaw, P. (2006) Transparency as a Human Right. In: Hood, C. & D. Heald
(eds.) (2006) Transparency. The Key to Better Governance? (Oxford: Oxford University
Press), pp. 48- 57, 48
73 Ibid., 55
74 Heald, D. (2006) Varieties of Transprency. In: Hood, C. & D. Heald (eds.) (2006)
Transparency. The Key to Better Governance? (Oxford: Oxford University Press) pp. 2543, 27
75 Simmel, G. (1906) The Sociology of Secrecy and of Secret Societies. In: The American
Journal of Sociology. Volume XI (4), pp. 441- 498, 469
76 Heald, D. (2006) Varieties of Transprency. In: Hood, C. & D. Heald (eds.) (2006)
77 Ibid., 39
[27]
upwards transparency, whereby the information extracted from vertical
reporting ends up at the authorities or hierarchical superiors. The clear-cut
between the public and private domain, that the transparency principle used
to contain, has started to fade away. Transparency is now also something
which is becoming more and more applicable to the private domain. The strict
‘isolation of the affairs of individuals 78’ of which George Simmel spoke, is
losing grounds. This is where the shoe starts to pinch.
With these new transparency tendencies other human rights seem to
be at stake. Most of all; the right to privacy. This following quote is from an
invitation to the lecture ‘The Scanned Human Being’, planned by a humanistic
organisation 79, pretty much sums up the argument:
“DNA showers, judicial means of enticement, snitch lines, disturbing
shadowing, nude scans, interactive cameras, electronic patient files,
children who commit mischief and who’s DNA is being saved for 30
years, ethical registrations, expansion of preventative frisking, we
could continue like this. In the Netherlands we are seeing that the
solution of many problems, in the health care, in the public space, in
the education, in tensions between ethical groups, are found in
breaches of civil rights, because this would ‘work’. Supposedly there
is nothing problematic about this, because ‘we have nothing to
hide 80”.
Also within the field of crime deterrence new precautionary methods are set in
place in order to detect the harm, and the harm-doer, as soon as possible. It is
mainly, this last issue – detecting the (potential) harm-doer, which causes
dispute. “Suitable enemies are demonised (...) Those who disturb domestic
security – youth, the dispossessed, the diffusely dangerous – are excluded and
punished for mere signs of threat and the uncertainties they arouse 81.” A good
and controversial example is the registration of former child molesters. There
are websites 82 where you can enter your postcode to see whether a paedophile
is living in your neighbourhood. There is also a Dutch website 83 which serves
to keep the Dutch public safe from paedophiles. The notices on the
individuals, who are mentioned by full name, do not beat around the bush 84.
Simmel, G. (1906) The Sociology of Secrecy and of Secret Societies. In: The American
79 Humanistisch Verbond
80 Quote from a invitation to the lecture ‘The Scanned Human Being’ , available at:
http://www.felix.meritis.nl/nl/agenda/de-gescande-mens/ (17 April 2009)
81 Ericson, E. (2007) Crime in an Unsecure World (Polity Press: Cambridge), 206- 207
82 http://sexual-predator-report.com/pedophile-search.asp
83 http://www.stopkindersex.com
84 De naakte waarheid moet naar buiten. We zullen laten zien door middel van
screendumps dat [*****], een leugenaar en een smerige pedofiel geweest is. Zoals altijd
een verhaal begint, beginnen wij ook bij het begin. We zullen je laten zien dat hij
gevaarlijk was voor oa kinderen. Hij was gek, dacht dat hij een porno koning was,
78
[28]
It is the call for human dignity and the right to privacy which is being
contested with these type of websites. Another aspect of the far-reaching
transparency is that symbolic punishment – initially a character of premodernity – seems to have returned to the field of crime regulation. This is
also something we see in official penal system where we are seeing a ‘reemergence of punitive sanctions and expressive sanctions 85’. The thought of
being unjustly victim of digitally scaffolding, as happened among others to the
American schoolteacher Ting-Yi Oei 86 (I read it today in the newspaper), is
terrifying.
The emergence and growth of upwards transparency hold the risk of
other basic human rights being breached. Freedom of information, should
never be interpreted as access to all information without restraint 87. The right
to freedom of information is not absolute and must always be balanced
against other rights, for example the right to privacy. Also, with an eye to
techniques of torture within the War on Terrorism, against the right to life.
The fact that new surveillance and transparency techniques are set up in
order to address uncertainty 88, stresses the need for critical enquiry. We have
no idea what these new tools are bringing us. Erikson takes it a step further.
Not only do we have no guarantee that the surveillance techniques are
effective, we can fairly expect them to be counterproductive since some forms
of
the new
surveillance techniques
manufacture new
uncertainties 89.
contribute to
tunnel
vision
and
Reason enough to address the upwards
transparency tools with scrutiny. I have to agree with Heald who calls for
‘thoughtful policy design and implementation 90’ of any transparency measure.
The open question is what we want the transparency principle to apply
to? Heald 91 refers to the ‘sunlight metaphor’ of transparency, and with that
calls attention to the danger over over-exposure. At what point is there an
overkill of transparency and of freedom of information? One argument against
too much openness, is not so much the overkill of information in the public
domain, but disappearance of secrets. This might sound strange. Why would
dacht dat hij geld had, en aanbad Satan. [******] was lid van de SP en van de
Satanische kerk in Amsterdam. Zijn leugens, zijn vriendschappen met een bepaald
soort mensen zullen wij naar buiten brengen. Spaar je overigens de moeite, alle
bewijzen zijn veilig opgeborgen op een speciale website, dit voor de pedoseksuelen en
hun vrienden die willen proberen dit alles tegen te houden. [*****] ging te ver, dat
kostte hem zijn leven.(source: http://www.stopkindersex.com 2 May 2009)
86 Oostveen, M. (2009) Sexting en Flagging. In: NRC weekblad 2-8 mei, p.15
87 Birkinshaw, P. (2006) Transparency as a Human Right. In: Hood, C. & D. Heald
(eds.) (2006) Transparency. The Key to Better Governance? (Oxford: Oxford University
Press), pp. 48- 57, 48
88 Ericson, E. (2007) Crime in an Unsecure World (Polity Press: Cambridge
89 Ibid., 205
90 Ibid., 41
91 Heald, D. (2006) Varieties of Transparency. In: Hood, C. & D. Heald (eds.) (2006)
[29]
it be a bad thing if there would be less secrets? The (contemporary)
connotation of a secret seems to have become negative within the current
transparency quest. But a secret can be a good thing. The classical sociologist
George Simmel 92 analysed the function of secrets within society. According to
Simmel secrets shape the foundation of all human relationships. The fact that
you know something about another creates a feeling of personal possession.
This sense of possession is a tool for setting boundaries between insiders and
outsiders, “I know something that you don’t know” 93. Keeping information that
the other trusted you with, proves your trustworthiness; an essential
precondition for any effective and enduring relationship. Information can be a
powerful tool to manage relationships. Not only by keeping information hidden
from others, but also by freeing information. Trust is inextricably bound up
with secrecy. Too much open information would harm relational trust. If all
information is open and accessible, why need trust? Simmel describes the
friction as follows: “The possession of full knowledge does away with the need
of trusting, while complete absence of knowledge makes trust evidently
impossible 94”. A society cannot survive do without trust.
Please do not make the mistake of thinking that Simmel identifies
secrecy as a good thing per se. He merely says it could be. Simmel clearly puts
forward that secrecy is a social form without any moral value: “Secrecy is a
universal sociological form, which, as such, has nothing to do with the moral
valuations of its contents 95”. Secrecy is a ‘social technique’ without which
certain purposes, like trustful relationships, could not be attained. This social
technique can be used for the good and for the bad. Keeping a secret can be a
good thing or a bad thing. Secrecy is often placed opposite to transparency.
Still, it seems that transparency, as a counter-technique to secrecy, is being
portrayed as being a virtue in itself. Simmel would probably wonder whether it
is a wise thing to present transparency as a virtue. Just like secrecy has a
clear boundary, so does transparency. According to Simmel 96, secrecy clearly
becomes dangerous when secrecy becomes an aim in itself. Could we say the
same thing about transparency?
CONCLUDING REMARKS
Society has seen a widespread uproar and disapproval of processes of
bystander paralyse. Silence of the bystander is becoming more and more
Journal of Sociology. Volume XI (4), pp. 441- 498
93 Ibid., 464
94 Ibid., 450
95 Ibid., 463
96 In this respect, Simmel talks about a secret society: when the secrecy becomes an
aim in itself. Ibid., 467
[30]
unacceptable. On the one hand we have seen the development of the
emancipated human masses, the opposite of the muted masses. We have seen
a rise the participating voice-willing citizen, victim and witness. A bottom-up
demand for the creation of institutions which allows them to voice. On the
other hand we have the top-down call from governmental players, looking at
society for help to organise the ultimate ‘culture of control’. With an eye to the
existence of hidden risks, the citizens are asked to participate, mainly in
functioning as society’s early warning eyes and ears. The next chapter will
examine the complexity about breaking the silence. Intrinsic human
considerations make the step towards acting out not the obvious choice.
[31]
2
The Complexity of
Breaking the Silence
INTRODUCTION
The previous chapter described the growing condemnation of silence alongside
the expanding reach of the transparency principle. One utterance of this
process, has been a growing attention to the witness. Especially the silenced
witnesses: those who stand by but do nothing. These can also be referred to
as bystanders. Mechanisms are put in place in order to attract as much voice
and openness of information from the public as possible. The expected
behaviour is action, in the shape of voice. In this thesis I will focus on one
special
type
whistleblower
of
bystander,
differs
from
namely
‘normal’
the
potential
bystanders,
in
whistleblower.
The
a
the
sense
that
whistleblower is bounded to the perpetrator environment. Chapters 3 and 4
will focus on the legislation, procedures and means which have been put in
place in order to create whistleblowers. This chapter examines the complexity
of getting potential whistleblowers to break the silence. Firstly, I will address
Chapter 2 The Complexity of Breaking the Silence
this by looking at the conditions which make people choose non-action over
action; I will discuss silence as a form of bystander paralyse (2.1). These
conditions are, thus, applicable for witnesses within the bystander situation
as well as for witnesses within the whistleblowing situation. Secondly, I will
look at the conditions which are unique within the whistleblowing situation
(2.2). I will discuss the intrinsic social function of silence, or better of ‘secrecy’.
I will argue this function of secrecy negatively influences the chance at
speaking up, in particular within the whistleblowing situation.
The Bystander, the Witness and the Whistleblower
The literature on silence are filled with phrases like ‘the bystander’, ‘the silent
observer’ and the ‘audience’. Because of the use of these phrases in the media,
some of these have already gotten a moral value. For example ‘the bystander’,
according to Cohen 97, already implies the judgement of a passive witness. To
avoid confusion on the terms, I added an overview of the bystander in figure 1.
In broad lines you can say that bystanders, as described in literature, can be
differentiated according to the scheme in figure 1. Bystanders can be divided
into those who act out and/or speak up and those who do not; the paralysed
and/or silent bystanders. There are two types of silent bystanders; those who
do not categorise the observed behaviour as wrong and those who do. The
former are the ‘blinded bystanders’, the later the ‘silent observers’. The
category of the silent observers can further be divided between those who have
malignant intent to preserve the silence and those who do not. The difference
between these two is that the later are in mind willing to make an end to the
silence, a prerequisite if you want any witness to speak up. The nonmalignant silent observer is marked with red because this is the category
where ‘voice’ could potentially be extracted. In other words: the category with
witnesses that potentially could speak up. Within the whistleblowing situation
the category with potential whistleblowers. It is important to realize the
difference between positions and roles. Positions are linked to the situation.
For the purpose of this thesis, I want to differentiate between two situations:
the traditional bystander situation and the whistleblower situation. Within
both situations exist different roles. In broad line these roles are: the victim,
the witness and the perpetrator. Depending on the whistleblower situation,
the (potential) whistleblower could be a witness, a (former) perpetrator or a
victim. This is also the case within bystander situations. The difference
between both situations, is that the whistleblower situation is characterized
by the preexisting ties that exist between the witness and the perpetrator.
These are long-term and historic ties of interdependencies, based on other
facts prior to the observed wrongdoing. From now on, I will use the term
97 Cohen, S. (2001) States of Denial. Knowing about Atrocities and Suffering (Polity
Press Cambridge), 69
[36]
Chapter 2
The Complexity of Breaking the Silence
‘bystander’ for the traditional bystander situations whereby the ties between
the witness and the bystander are ‘ad hoc’, based on that particular incident.
2.1 SILENCE AS A FORM OF BYSTANDER PARALYSE
Not so long ago I was walking on a rather desolated archaeological site in
Croatia. The ancient Roman city found itself surrounded with early twentieth
century decayed buildings and grey factories. No one had taken the effort of
making this former place of great civilization into a proper tourist trap. There
was no official entrance and everyone could just wonder around. The Croatian
children using the amphitheatre as their soccer ground with pieces of Roman
pillars marking their goals and the horror of the modern factories in the
background made the whole experience rather surrealistic, but that was also
exactly the charm of the place. We were trying to get to the former courthouse
when we saw a set of western clothes and a western backpack lying in the
bushes. This struck us as rather strange; no one was at the site and why
would anyone just leave their stuff behind in this deserted place? We looked
around; we called out if anyone was there, but no one answered. We tried
coming up with logical explanations. After a while my friend took the leading
role in convincing us both that it was probably just the clothes of some local
farmer who went to work on his field. My instinct felt unease (I never saw a
Croatian farmer with those kind of clothes), but still I decided to accept this
side of the story. “(…) I saw this unease – correctly, I believe – as arising from
a sense of knowing that something was deeply wrong, but also knowing that I
could not live in a state of permanent awareness of this knowledge 98”. We
decided to return to the main road and try to get a bus back to Split. Soon we
had forgotten all about it and we were annoyed that we had to wait a whole
hour before the first bus came. It was so very easy to just walk away.
Obviously my example is not as spectacular as the ones other scholars
Press Cambridge), Preface
[37]
have used to describe non-action. I could have chosen to use war stories like
the impressive ones Slavenka Drakulić 99 wrote about former Yugoslavia, or
the anonymous account of a ‘Woman in Berlin 100’. These type of stories
provoke shivers all over your body when you read about the persons who
watched and did nothing. I could have borrowed a phrase of those, but I chose
not to. With this simple day-to-day example I want to invite the reader to
stand still by all those incidents when he/she also decided to take the easy
road; look the other way, do nothing. For me, the social and psychological
dynamics which underlie these simple examples are similar to the grand
terrifying incidents that most of us, in this secure world, are just lucky never
to experience. I find it very disturbing when I hear people “open minded”
admitting that there might be a small chance that they would not have been
in the resistance, when they would have lived during WWII. Come on! Of
course you would not have joined the resistance! I also agree with the
unsympathetic character, a former SS soldier, of the book the Les
bienveillantes who says the following:
“I believe that human history has proven that every person, or almost
every person, will do what they are told to under a certain combination if
circumstances: and excuse me for saying, but there is a small chance
that you are the exception to the rule, no more than me [...] Never forget
this: you might have been more lucky than me, but that does not make
you a better person. The moment you become self-righteous to think
otherwise, danger is nearby 101”
Silence is a form or non- action, of bystander paralyse. Why is it so easy to do
nothing and look the other way when something occurs just before our eyes?
We hear the news about citizens in trouble and the bystander crowd’s state of
paralyse. In hindsight of such tragedy the public uproar is not so much about
the perpetrators, but about the bystanders who did nothing. Situations of
bystander dynamics vary by duration in time of the observed incident, the
distance of the bystanders to the observed incident, the clearness of wrong
and characteristics of the bystander group. The bystander paralyse typical
situation is when an incidents occurs somewhere in public space, for example
one individual gets beaten up by a group. In this situation the observed
incident endures only several moments, the bystanders are physically close to
99 Draculić, S. (2004) They Would Never Hurt a Fly. War Criminals on Trial in The
Hague. (Penguin Books: London) – Draculić, S. (1999) S. A Novel about the Balkans
(Penguin Books: London)
100 Anonymous (2000) A Woman in Berlin. Eight Weeks in a Conquered City. A Diary
(Picador: New York)
101 Littell, J. (2006) De welwillenden (De Arbeiderspers: Amsterdam), p. 28 translated
from Dutch to English
[38]
Chapter 2
the observed incident, the beating is obviously ‘wrong’ and the members of the
bystander group are linked together based on that specific incident. Most of
the bystander examples are not as direct and obvious as this example. There
are many situations whereby: “(...) people, organizations, governments or
whole societies are presented with information that is too disturbing,
threatening or anomalous to be fully absorbed or openly acknowledges 102”.
2.1.1 The Rational Restraints for Non-Action
The previous chapter showed that within the new crime and security policy,
the witness is becoming more important. The expected behaviour of
bystanders is voice as opposite to non- action. Nevertheless, incidents show
us that non- action as the easy road seems to be inherent to human nature.
Below, I will outline the motivations for the bystanders who do realize that
something is wrong but choose to remain silent; these are the silent observers.
These type of observes consciously decide to remain silent. There are
numerous human considerations which play part when someone observes
something he/she knows is unjust. Very simple day to day concerns make it
so easy to look the other way. The motivations I want to underscore are: fear,
uncertainty of consequence, awkwardness and unfamiliarity, relationship to
stakeholders, belief is the power to effect change, other preoccupations,
personal traits and the (non) presence of incentives to blow the whistle. It
speaks for itself that it is very difficult to distinguish actual motivations from
rationalization; most research is based on retrospect empirical accounts. The
rational restraints that I am discussing, are not unique to the whistleblowing
situation. “Ordinary” bystanders will deal with similar rational restraint
holding them back from acting out. I will elucidate the restraints from the
(potential) whistleblower perspective.
Fear
The most imaginable motivation for silence is fear; fear of all the negative
consequences you will face once you have stood up. The notions that no one
like a snitch still runs deep, in any culture. Snitches in all places and times
become the pariahs and outcasts of society. Especially the phrase outcast
seems applicable; you are no longer part of the strong tied group the ‘cast’. We
fear formal means of repercussion; organizational response like discharge. The
organization can have different reasons to retaliate on a former whistleblower,
depending on the power the whistleblower has within the organization 103. But
the observer also fears informal revenge like ridicule and oppositions by the
colleagues and fear that other will “view them as being simplistic, naïve,
Cohen, S. (2001) States of Denial. Knowing about Atrocities and Suffering (Polity
Press Cambridge), 1
103 Parmerlee, M., J. Near & T. Jensen (1982) Correlates of Whistleblowers’ Perceptions
of Organizational Retaliation. In: Administrative Science Quarterly, Vol. 27, No.1.March,
pp. 17- 34
102
[39]
stupid or silly” 104. Research into this subject has proven that the fear for
reprisal is more than just 105. Another type of fear is the ‘fear of being
implicated 106’, which implies that the person does not want to speak up out of
fear that he will become one of the accused him or herself. Well known
cases 107 have proven this fear to be just.
Uncertainty of Consequence
Would-be whistleblowers do not speak up because they are uncertain about
what will happen with the situation once they have broken the silence. The
idea of losing control over the matter, can be a long term threshold. “What
they fear is that they will lose free discretionary time so that what and how
they act will be determined to a greater extent by events and forces not at
their command 108”. Great uncertainty exists about what will happen to the
whistleblower him/herself. Will I have to be involved in the process? Will my
life change? Will the life of all my colleagues and other members of the
organization change? What will happen to my information and how can I
remain control over what will happen to the statements attached to my name?
Some scholars have also pointed at the fact that would-be whistleblowers are
concerned about what happens to the accused 109. How will your decision to
speak up affect, or destroy, the accused and or guilty individuals? It speaks to
itself that this uncertainty enlarges the amount of fear of the would-be
whistleblower.
Awkwardness
Observers remain silent also because they do not know how to go about it.
They are ‘ethical inarticulate 110’; which means that they do not know how to
frame their moral concerns. Not all observers are cultivated or educated to
deal adequately with these issues. Bird mentions four factors which define
your capacity to communicate, these are: i) the ability to assert one’s own
position; ii) the capacity to take into account the views of others; iii) the skill
at phrasing ideas to show the connection between things being discussed and
Bird, F.B. (1996) The Muted Conscience. Moral Silence, and the Practice of Ethics in
Business. Quarum Books: Westport & London, 156 – Fred Alford, C. (2001)
Whistleblowers. Broken Lives and Organisational Lives and Organisational Power
(Cornell Un. Press: Ithaca & London), 19
105 Miethe T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
and Abuse on the Job (Westview Press: Oxford), 73
107 The case of Ad Bos, the Dutch whistleblower who blew the whistle on big
construction fraud.
108 Ibid., 155
109 De Graaf, G. (2009) “Klokkenluiden: Stand van Zaken”. Presentation during the
Symposium “Klokkenluiden”, Transparency International, 21 April, The Hague
110 Bird, F. (1996) The Muted Conscience. Moral Silence and the Practice of Ethics in
Business (Quarum : Westport & London), 166
104
[40]
Chapter 2
iv) the talent for stating these things clearly 111. The absence of one or all of
these factors make the observer extremely insecure about speaking out and
would therefore rather choose silence over voice.
Unfamiliarity About Voicing Means
Many observers do not know where to turn to with their information. Within
many organization there are no ‘effective vehicles 112’ for raising concerns. In
certain organizations there are no points for addressing issues outside of the
normal reporting line, or even worse: there are more than twenty different
points for reporting issues. This uncertainty does not make it easier to make a
report; it is hard enough as it is. For many, turning to higher institutions like
the media is, understandably, not an option. Many silent observers, willing to
speak up, will sooner be inclined to give up.
The Relationship to Victims and Perpetrators
The victims of the wrongdoing (the organization, society, consumers, coworkers) will be of influence of the likelihood of an observer of wrongdoing will
speak up 113. Observers will have more empathy with victims they personally
know or in second instance, with victims they can identify with based on
shared characteristics 114. Hidden victims are less likely to appeal to the moral
conscious of the observer. The relation between the observer’s speak up ability
and his/her relationship with the perpetrator can go either direction. It is
impossible to put the types of relationships in categories and connect them to
expected reporting behavior. To my knowledge no significant research has
been done on the subject. Nevertheless, we can fairly assume that this plays a
big role in the observer’s handling.
The Power to Effect Change
As cultural factor within the field of speaking up, Bird mentions ‘assumptions
about possibilities for effective change’ 115. If people are cultivated knowing
that the system will never change and that revolt will help nothing, people are
less likely to stand up and speak out. This can be the cases regional cultures,
but also in organizational context. “The observer’s perception of the likelihood
that that reporting will result in corrective action 116”, is an important factor in
the reasoning of the silent observer. If the observer has no or limited
Ibid., 167
Ibid., 176
113 Miceli, M., J. Near & C. Schwenk (1991) Who Blows the Whistle and Why? In:
Industrial and Labor Relations Review, Vol. 45, No.1. October, pp. 113- 130, 115- 116
Business. Quarum Books: Westport & London , 148
116 Miethe T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
111
112
[41]
expectation of effectiveness, he or she will likely not take the chance. Looking
at it from the other way: Near and Miceli 117 have defined ‘reasonable
supposition of success’ as crucial element of the construction of a
whistleblower. This is what makes the difference between the informant and
the
whistleblower:
the
informant
speaks
up
without
aiming
for
effectiveness 118.
Other Preoccupations
I already talked about the process of dispersed responsibility in a more
unconscious, automatic process. Observers of wrongdoing also consciously
can decide that they have other preoccupations, that ‘their plate is full 119’.
People feel like they have no energy left to take on another duty.
Businesspeople are preoccupied with advancing their careers, distractions
could get in the way. This is especially the case with young, ambitious
managers 120. The excuse of other preoccupations was more or less my excuse
when I was walking in the deserted site in Croatia: it was not my place to step
up. The truth is that I just did not feel like getting involve, it was so much
easier just doing nothing and move away.
Personal Traits
No research suggests anything like a whistleblower character. One thing that
does seem to come forward is that whistleblowers are more likely to be: “older
or have more service, are better educated, and are more likely to be male than
inactive observers 121”. Further, the observer’s moral development, the
observer’s loyalty and situational variables have influence on the observer’s
handling 122. You can understand that the endlessness combination of all
these traits with the individual observer can go all ways. I will leave this as it
is.
(Non) Presence of Incentives
I already underlined the role of self-interest within the bystander dynamics.
Within social dilemmas, self- interest often conflicts with the general good 123.
In bystander situations the self-interest of the bystander is clear: there is
Near, P. & M. Miceli (1996) Whistleblowing: Myth and Reality. In: Journal of
Management. Vol. 22, No. 3, 507- 526, 510
118 Ibid.
120 Ibid., 165
121 Near, P. & M. Miceli (1996) Whistleblowing: Myth and Reality. In: Journal of
122 Ibid. 513
123 Liebrand, W., D. Messick & H. Wilke (eds.) (1992) Social Dilemmas. Theoretical
Issues and Research Findings. (Pergamon Press: Oxford), 4
117
[42]
Chapter 2
none. In the whistleblowing situation there are even great incentives not to
speak up. Maybe the compassioned human being would feel a need to step in,
but unfortunately practice tells us that those type of human beings are,
coincidentally, seldom around in those particular situations. Non malignant
silent observers understandably remain silent as survival mechanism; they do
not have any rational reason to outweigh the potential damage as a result of
reporting. This observation has led many to vote for the creation of incentives
to report. Not only protective legislation, but completion through other means,
of which financial rewarding is most common. In the US several whistleblower
legislation work with this incentive based principle.
Collaboration
The last motive I want to underscore for the silent observer to turn a blind
eye, is collaboration. In the figure 1, you can see that the silent observes can
be divided into malignant silent observers or non-malignant observers.
Malignant silent observers are those whose intent is to uphold the silence in
order to maintain the wrongdoing. Non-malignant silent observers remain
silent for other motives. Scholars of ethics have pointed at the difference
between the motive for action and the purpose for action 124. Both the non
malignant and malignant silent observers might have the same purpose of
their action: namely non-action in the shape of silence. The motive, however,
differs. For the malignant silent observer, the motive for non-action is to
uphold the silence, in order to uphold the wrongdoing. This makes them
collaborators. The motive behind the silence of the non-malignant observers
have nothing to do with the silence, but rather with personal security. We can
fairly say that it is not always easy to identify the motive of non-action and
hence collaborative action.
2.2 CIRCUMSTANCES UNIQUE TO THE WHISTLEBLOWING SITUATION
The preceding part focussed on the general easy road of non-action. A road
which is inherent to human nature. I believe we can all reflect on ourselves
and come up with incidents when it was just more comfortable to look the
other way. Usually this happens in a split second, so that an almost
unconscious force guides us away from the incident. For witnesses incidents
which cover a certain time frame, rational considerations come into play and
provoke restraints against acting out. These considerations are present within
the ‘ordinary’ bystander situation, as within the whistleblowing situation.
Unique to the whistleblowing situation, is that it gets further complicated by
the presence of ‘ties’ next to the mentioned rational restraints. The ties
between the different roles, especially between the witness and the
Duska, R. (2007) Contemporary Reflections on Business Ethics (Dordrecht:
Springer), 10
124
[43]
perpetrator, add to the dilemma’s the potential whistleblower is facing.
2.2.1 The Pressure of Ties
Whistleblowers find themselves in permanent groups, organisations or
corporations. The permanent character of the bystander group within
organizations is unique. Many other situation of non-action, the (bystander)
group shapes itself based on those particular present circumstances. It
resembles the Weberian term of a ‘party’; a group put together to achieve a
specific goal in a particular time setting 125. Even when the action of the
bystander group is non-action, as could be the case with bystander paralyze,
we would still call this a bystander ‘party’. A bystander ‘party’ is unique since
the goal makes the group. In other groups, like co-workers, other goals and
interests already exist. So, when that group all of a sudden is dealing with an
incident outside of their direct group goals, the original group ties and interest
remain active. These ties create pressure on any group member who witnesses
wrongdoing to act out in. Through these ties, perpetrators are able to exercise
power over the witnessed within the environment. A very simple example is
the manager who has the power to fire or ‘cool out’ any knowledgeable weak
link. Not many would want to jeopardize their economic position by creating
conflict; power independencies provoke a more rational choice for silence.
Furthermore, even when the witness might feel comfortable that his speaking
up would actually stop the corrupt manager or the corrupt group, he would
still understandably be concerned about the effects on his own position, as
part of the same group.
The members of the whistleblower situation are not only bound by
economic ties of interdependencies. Even more importantly: they are bound by
a shared subculture. Group pressure plays a role, which can lead to
unconscious and natural willingness to ‘go with the flow’, follow the common
opinion and ‘the way things are done around here’. This aspect leads to
‘moral blindness 126’; failing to recognize moral wrongdoing in that particular
environment. Furthermore, the interpersonal relations which are part of any
society or group, create certain ‘universal sociological forms 127’, which can
shape internal conflict about which road to choose. Internal queries which
might arise are: will my act be in the preservation of the group? Will I be a
snitch? Whom and which purpose will I serve by speaking up? No one wants
to be a tattletale. Even when the conflicting interest are as high as a matter of
life and death, breaking the group silence will still feel like betrayal. In the
Weber, M. (1922) Class, Status, Party. In: Economy and Society.
Business. Quarum Books: Westport & London
125
126
[44]
Chapter 2
early nineteenth century George Simmel 128 provided us with an understanding
of this pattern with his analysis of the function of secrecy. The previous
chapter (1.3) already took up Simmel’s notions on secrecy. His ideas can be
summarized in this one quote: “All relationships of people to each other rest,
as a matter of course, upon the precondition that they know something about
each other 129”. Sharing knowledge and keeping it secret functions as an
utterance of commitment and can be used to draw borders between the
insiders and outsiders. It is a valuable element of any societal group. This
sociological account becomes evident in any group situations. Everybody
knows that it is not done to share secret information outside a relationship or
group. We have all known this ever since the time we told mother about our
brother or sister stealing cookies from the cabinet. It is this universal
sociological form, which touches upon the heart of the whistleblowing
dynamics.
Due to this deeply embedded sociological form, whistleblowers are
perceived as - and feel disloyal themselves - to the group. Whistleblowers are
rats, snitches or betrayers. Maybe we have seen whistleblowers being
portrayed as hero’s in certain ‘Times’ and places, but I doubt how deep this
layer of moral heroism actually runs. This is shown, for example, in the
difficulty most former whistleblowers have in finding a new job. Scholars of
ethics 130 have put forward that a company or a group of coworkers is not a
proper object of loyalty, since the groups aim is not moral in itself. With
family, kinship or friendship the group is an aim in itself, with business the
group exists to reach other goals, like profit. Also, the famous work of
Hirschman 131 on loyalty, clearly affirmed ‘voice’ rather than ‘exit’ as a
manifestation of loyalty. Regardless of these dismissing rationales, the
emotional pressure of assumed disloyalty and the fear of societies moral
disapproval is surely to cause many to choose silence over speech. Secrecy as
universal sociologic form runs deep.
There is one awful and disastrous flaw about sociological forms: they
have nothing to do with morality 132. Secrecy is merely a form, a technique
used by social beings to create relationships. This means that the universal
social technique of secrecy can be used for either the good and the bad. Cohen
and Prusak 133 also discuss this in their work In Good Company on social
capital: “The same social capital that draws members of groups together to
Ibid.
Ibid., 441
130 Zadek, S. (2007) The Civil Corporation. Revised with a new introductory essay.
(Sterling: Earthscan)
131 Hirschman, A. (1970) Exit, Voice and Loyalty. Responses to Decline in Firms,
Organizations and States.(Harvard University Press: Cambridge)
133 Cohen, D. & L. Prusak (2001) In Good Company (Harvard Business School Press:
Boston)
128
129
[45]
perform useful work can also make groups clannish, isolated, narrow-minded,
suspicious of outsiders, and even delusional 134”. This is what Cohen and
Prusak call the ‘dark side of social capital 135. Being part of an organization
comes with this ‘cultural pressure’; organizations have power to shape the
behavior of employee, for good or ill 136. Punch uses the concept of Goffman’s
total institutions to point out the similar danger: “[it] may enhance the grip of
the organization on the individual and may make it a question of institutional
loyalty when employees are asked to engage in deviant practices 137”. It is the
kind of environment which spurs a cultural denial, wherein telling the truth
becomes taboo and threatening 138. “Without being told what to think about (or
what not to think about) and without being punished for “knowing” the wrong
things, societies arrive at unwritten agreements about what can be publicly
remembered and acknowledged 139”. Within institutions and organizations ‘the
group censors’ itself if this is necessary in the light of self-preservation.
When the strong universal form is used for the good, all’s good. On the
other hand, when it is used for the bad, all’s bad. Then, we see that an
internal resistance exists to act out in order to stop the wrongdoing. Going
against the group feels like betrayal, a feeling which resembles moral
disapproval. It appears that individuals get mixed up about universal
sociological forms and morality. However, as Simmel stated clearly: a social
technique “has nothing to do with the moral valuations of its content”. It is the
confusion between morality and sociological techniques which lie at the heart
of
the
discussions,
confusion
and
schizophrenic
response
to
the
whistleblower. Again, moral content is needed. The question remains: who will
provide the moral content?
2.2.2 Organisational Structure
Organizational wrongdoing often occurs over a long period of time. An effective
mechanism of silence is necessary to maintain the organizational deviance.
Therefore, literature explaining the roots and causes of organizational crime,
often also explain the processes which underlie silence. The size, complexity
and segmentation of today’s large business organization is often being
mentioned as providing opportunity for deviance 140 and mechanisms of
Ibid., 14
Ibid., 15
136 Schwartz, P. & B. Gibb (1999) When Good Companies Do Bad Things. Responsibility
and Risk in an Age of Globalization (John Wiley & Sons Inc.: New York), p. 111
137 Punch., M. (2000) Suite Violence: Why managers murder and corporations kill. In:
Crime, Law & Social Change 33, 243- 280, pp. 256
139 Ibid., 10- 11
134
135
[46]
Chapter 2
silence. Today’s business processes have been chopped up with the separation
of labor. This has reduced the power of workers to take their own corrective
action which enlarged the risk of something going wrong in the process 141.
Globalization and the appearance of techniques with singular specialists, have
further lead to a complex production chain 142. Positions become like ‘building
blocks’ which come with a specific piece of knowledge and a limited, bordered
part of responsibility 143. This leads to a situation whereby the morality of the
organization becomes: “(…) the morality of “segmented acts’ that foster
indifference and even evasion of responsibility 144”. This leads to the “diffusion
of responsibility effect 145”, meaning that the larger the group of bystanders the
less likely any one bystander is to act out. The book of Jonathan Littell again
gives a good description of dispersed responsibility:
“After the war, while being questioned, all these persons
answered: me guilty? The nurse did not kill anybody, she simply
undressed the sick and calmed than, just part of her job. De
doctor did not kill anyone either, he simply confirmed a diagnose
based on the criteria given by other institutions. The one opening
the gas tap, who comes nearest to murder as for time and
distance, is performing a technical job under surveillance of his
superiors and the doctors. The cleaning staff who (…) The
policemen who (…) 146”
Also within organizations, people always feel more responsible when they are
the sole witness of wrongdoing and hence would be more likely to report it 147.
According to Katz 148, this diffusion of knowledge is not just a circumstance of
influence, but is also an aim in itself; all participants have common interest in
limiting the knowledge each obtains. Katz calls this ‘strategic ignorance’,
which: “insulates the individual form the group’s culpability 149”. Furthermore
existing ‘building blocks’ are often intentionally utilized by deviant elites for:
Miethe T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
142 Winfield, M. (1994) Whistleblowers as corporate safety net. In: (E. Vinten ed.)
Whistleblowing Subversion or Corporate Citizenship? (St. Martins Press: New York), pp.
21- 31, 22
143 Ermann, M. & R. Lundman (eds.) (2002) Corporate and Governmental Deviance.
Problems of Behavior in Contemporary Society. Sixth Edition (Oxford University Press:
Oxford), p. 7- 9
145 Miceli, M., J. Near & C. Schwenk (1991) Who Blows the Whistle and Why? In:
Industrial and Labor Relations Review, Vol. 45, No.1. October, pp. 113- 130, 117
146 Littell, J. (2006) De welwillenden (De Arbeiderspers: Amsterdam), p. 27 translated
from Dutch to English
147 Grover, S. (1993) Lying, Deceit, and Subterfuge: A Model of Dishonesty in the
Workplace. In: Organizational Science, Vol. 4, No. 3 August, pp. 478- 495, 480
148 Katz, J. (1979) Concerted Ignorance. In: Urban Life, Vol. 8, No. 3 (Oct.) 295- 316, p.
297
149 Ibid.
141
[47]
“(…)“cooling out” [resignation] troublesome insiders who have incriminating
knowledge 150”. Katz rejects the idea of deferential passive bystander; silence is
something intended.
Beamish 151 analyses the petroleum spill of Unocal Corporation into
Central California’s Guadalupe/Nipomo dunes. The spill lasted many years,
which in the end lead to a total amount of 20 million spilled gallons. Beamish
shows that the oil field workers had become part of an organizational
structure whereby the workers just got assigned a singular part of the
process. This part became a cognitive script, a schema, which the workers
could just perform day in day out. When the spilling became part of the work
routines, it caused the situation of partial moral blindness; the workers just
did not think it was an important issue to think about 152. After a while, these
daily routines become ‘institutionalized’; “(…)the behavior takes a life of its
own [and] (…) are woven into the fabric of organizational life [which leads to]
well- intentioned individuals in organizational settings may produce deviant
actions, even though none of them have deviant knowledge, much less deviant
motivations 153”. Moral muteness, failing to pose moral questions, can be
institutionalized in a similar matter. Institutionalized moral muteness
furthermore, leads to moral blindness. This process gets further stimulated
due to the coping mechanism of rationalizations and neutralizations which
individuals take on 154.
2.2.3 The Unwanted Message
Today 155 I read a noticeable story in the newspaper; the story of Giampaolo
Giuliani. A few days before the earthquakes in central Italy (April 2009),
Giampaolo Giuliani warned the Italian authorities about the forthcoming
disaster. Giuliani did his predictions based on a devise which senses the earth
movement. The devise has never officially been scientifically approved, but in
earlier earthquakes the devise has proven its worth. Not only did the
authorities refuse to listen to him, but they also charged him with inciting
panic. A few days later, when the devise showed extreme disruptions, Giuliani
fled with his family away from the site, just in time before the earthquake took
207 lives. Giuliani expresses great guilt for not having been able to warn all
Ibid., 300
Beamish, T. (2000) Accumulating Trouble: Complex Organization, a Culture of
Silence, and a Secret Spill. In: Social Problems, Vol. 47, No. 4 (Nov.) pp. 473- 498
152 Ibid., 479
153 Ermann, M. & R. Lundman (eds.) (2002) Corporate and Governmental Deviance.
Problems of Behavior in Contemporary Society. Sixth Edition (Oxford University Press:
Oxford), p. 9- 24
154 Anand, V. B. Ashforth and M. Joshi. (2005) Business as usual: The acceptance and
perception of corruption in organizations. In: Academy of Management Executive, Vol.
19. No. 4, pp. 9- 23
155 Mesters, B. (2009 April 8) “Vrees om in een tent te leven’ In: NRC, International
150
151
[48]
Chapter 2
citizen personally.
The story of Giuliani is a typical story of the unwelcome messenger.
This is an important notion to figure out the construction of silence. Because
even when you get as far as to make someone willing to speak up, the next
vital element in order to bring about action, is someone willing to listen. Often
many reasons exist why someone is not ready to be the listening ear, since the
burden of the listening ear is too heavy. This other side, the side of the
audience, is crucial in getting grips on something as complicated as silence.
Therefore, I want to elucidate the work of Bird, a professor of comparative
ethics, ‘The Muted Conscience 156’.
Moral silence is term Bird uses to describe the observed repetitive
condition of silence; a condition whereby certain questionable issues remain
under a veil without ever coming to the surface. Moral silence is also called
moral muteness, which exists on the side of the witness; “People are morally
mute when they fail to speak up about matters they know to be wrong […]
when they fail to defend their ideals and when they cave in too easily and do
not bargain vigorously for positions they judge to be right 157”. The condition of
moral silence is further enforced by the other two elements of the construct
‘moral conscience’: moral blindness and moral deafness. Being morally blind
implies that you do have moral convictions (no individual goes without any),
but that you somehow manage to block them out in certain parts of your
existence 158. The notion of partial moral blindness corresponds with the idea
of the split personality of the corporate manager; at home he is a loving dad
and regular church visitor, at the office he is a scrupulous manager; a
construction like dr. Jekyll and Mr. Hyde 159. Moral deafness, the last element
of mute conscience, happens when people fail to take notice of moral issues
and concerns raised by others 160. Often moral deafness goes hand in hand
with moral blindness. Managers and supervisors fail to respond adequately to
raised issues by their staff. This can be due to rational and consciousness
reasons, like the posed example of the ‘unwanted message’, but this can also
be caused by partial moral blindness.
By cutting the condition of silence into pieces – observing, voicing and
listening – Bird adds vital shades to the complexity of breaking silence.
Silence is not just a problem which lies with the muted bystanders. Most
persons who reach out or try to warn, do not do it by actually blowing the
whistle or ringing the bells, rather they give vague signals (“whispers 161”)
Business. Quarum Books: Westport & London
157 Ibid., p. 1- 2
158 Ibid., 85
159 Mitchell, L. (2001) Corporate Irresponsibility. America’s Newest Export. (Yale
University Press: New Haven & London), chapter 5, pp. 97- 134
161Ibid., 39
156
[49]
which someone should be willing to pick up. Even though Bird describes the
dynamics within organizations, the same dynamics applies to broader societal
developments. The transparency we are striving at, cannot thus not be created
by merely focusing on the voicing side. There should be applicable guidance to
create awareness on which observed issues require voicing. Furthermore,
there should be means in order to listen adequately to the raised concerns.
These two aspects are probably much more vital within the process of adding
moral content, to the new transparency quest. I will return to this in the
general conclusion.
CONCLUDING REMARKS
Silence as a form of non-action of the bystander is of all times and places. It
appears to be one of these things that is so understandable when it happens
to oneself, but unacceptable when it happens to others. History shows us over
and over again that massive silence lies at the centre of human nature; the
ample books that have been written about bystander paralyze and silence tell
us why this is the case. At least it is clear that it is a very complicated issue
and that silence can be caused by complex combinations of motivations on
individual, organisational and sociological level. These can be conscious or
unconscious, rational or irrational, intended or accidental and malicious or
non-malicious. In short: not an easy subject to tackle, let alone come up with
solutions to prevent damage caused by patterns of silence.
For the whistleblowing it is even harder. The potential whistleblower is
linked to the perpetrator environment. On the one hand, this leads to rational
incentives not to speak up; it would be self-destructive. On the other hand it
leads to a sense of group belonging which further creates internal conscious
or subconscious resistance against speaking up. Breaking secrecy among
fellow group member, is simply not done. It appears that in these cases, we
are confusing social techniques with morality. Secrecy has turned into a social
code. Again, secrecy is a technique empty of any morality. Secrecy can be
used for the good and for the bad. This principle applies just as much to
breaking the silence; speaking up can also be for the good and for the bad. A
whistleblower can be a snitch or a hero. Unfortunately, society always decides
in hindsight which one of the two it is going to be. With this, a high threshold
is created to make observers of serious wrongdoing speak up.
Chapter 1 demonstrated the rise of the transparency quest. As a result
we are seeing a broad societal move towards expanding the role and
responsibility of the bystander. Means are set in place to extract a much
signals as possible in order to detect danger and risk as early as possible.
Reporting initiatives are growing like a weed. The transparency quest has also
led to a renewed attention for the whistleblower. Witnesses who find
[50]
Chapter 2
themselves within the whistleblowing situation could be extra valuable for the
transparency quest, since they could break silence covering long-term and
large-scale dangers. Even more, (potential) whistleblowers find themselves
close to the fire and could serve as thé detector of unknown societal risk.
Unfortunately, the transparency quest is not likely to find its partner here,
since the (potential) whistleblower is being held back by the same thing
transparency is trying to beat: secrecy. Nevertheless, we are seeing
developments in this field. Chapter 3 will portray a history of whistleblowing
law and practice. Chapter 4 will describe the mechanism which are put in
place in order to provide whistleblowers with a safe speakers platform. I will
focus on the whistleblower situation and how the corporate governance
movement puts mechanisms in place to extract voice from that specific
category.
[51]
3
A History of
Whistleblowing
Law and Practice
INTRODUCTION
In the previous chapters I have described a movement towards more
transparency in order to get grips on reality and the future. Within the quest
for transparency we saw a societal dismissal of silence and with that a drive
towards consolidating means provoking voice among the public: the ears and
eyes of society. Within that framework, whistleblowing and whistleblowers
have gotten new attention. You could also say that the term has gotten a new
connotation due to these new perspectives, which I will address in chapter 5.
In the current chapter, I will start with describing the history of ‘traditional’
whistleblowing practice. Whistleblowing law and practice have been vivid in
the US for a while and has started to cross borders in the last decennium of
20th century. Most of the whistleblowing knowledge comes from the US and is
therefore written in a context of a unique whistleblowing infrastructure.
Chapter 3 A History of Whistleblowing Law and Practice
3.1
THE US CRADLE
Not surprisingly, the initiatives to legally protect individuals who stand up
against failures of the system, once originated in the US: the cradle of liberal
thought. In the US, whistleblowing protection was one way of reinforcing the
cultural value of protecting the individual and even more important: his/her
freedom of speech. In the US whistleblower protection is perceived as “part of
America’s
identity
dating
to
the
Declaration
of
Independence,
and
institutionalised as the first amendment in the bill of Rights to the
constitution 162”. Some talk about a legal revolution that followed this spirit;
statutory laws extending freedom of speech in the workplace were enacted
unanimously. The strong commitment to the freedom of speech principle is so
ingrained in US culture that, according to Devine, opposition to whistleblower
protection legislation would be “political suicide” 163. Many have pointed out
elements of US popular culture (movies, television shows and other media) as
verification of the valued place the strong individual (the whistleblower) holds
in US culture. And as is the case with US culture more often, whistleblowing
became a US export product 164.
The US False Claims Act (FCA), which originated during the Civil War
in 1863, is commonly viewed as the start of whistleblowing legislation. The act
was established as a result of fraudulent actions by companies that took
advantage of war time. They either overcharged the government for wartime
supplies 165 or sold defective munitions. Citizens were able to sue the
malignant company on behalf of the US. This is called qui tam 166 principle: a
private person can file on behalf of the federal government. The individuals
claiming under the FCA did not necessarily had to be part of the company
they accused; under the FCA every citizen has the right to file a complaint.
Today, the FCA remains one of the primary weapons to fight fraud against the
government 167. The Office of Special Council (OSC) 168, which is part of the US
Department of Justice (DOJ), has the responsibility to decide whether the
claims that are made through the False Claims Act are prosecuted. In the
Devine, T. (2004) Whistleblowing in the United States: The Gap Between Vision and
Lessons Learned. In: (Calland. R. & G. Dehn eds.) Whistleblowing Around the World.
Law, Culture and Practice (ODAC/ PCaW: London), pp. 74- 100, 74
163 Ibid.
164 Johnson, R. (2003) Whistleblowing: When it Works and Why. (Rienner Publishers:
Boulder & London), 115
165 Ibid., 94
166 “Qui tam is an abbreviation for a Latin phrase dating back to 13th century England,
meaning a person who sues for the king as well as for himself. Under the FCA [False
Claim Act] , a qui tam case is filed by a private person on behalf of the federal
government. The government can also pursue FCA claims through federal agency
investigations and referrals without a relator.” The relator is the name for the person
who files the case under the False Claim Act. See Ekstrand
167 Ekstrand, L. (2006) “GAO-06-320R Information on False Claims Act Litigation”
United States Government Accountability Office. Available at: www.gao.org
168 http://www.osc.gov/index.htm
162
[56]
Chapter 3
A History of Whistleblowing Law and Practice
years 1987-2005 the government has won recoveries over $15 billion 169. A qui
tam claim could and has, rendered whistleblowers with rewards up to 70
million dollar. However, the outcome of qui tam claims is very uncertain and
has a long lead time, running up to ten years 170. Yearly so many US citizens
file a claim that, according to the Washington Post 171, a huge back lash exists
at the DOJ; the average decision making time at the DOJ whether the claim
will be prosecuted, is fourteen months.
Next to the FCA, there are many federal whistleblower laws. A great
number concern labour law and health and safety regulations. To give some
examples: the Railway Labour Act (1926) Federal Railroad Safety Act (1970),
Safe Drinking Water Act (1978) en the Clean Air Act (1988). When an act has
whistleblower provision, it means that the act protects any person 172 who
speaks up about a violation of that act from retaliation. In practice this means
that a person claiming to suffer from retaliation can file a complaint under the
whistleblower provision to the designated office. Many federal whistleblower
laws are administered by the U.S. Department of Labour (DOL). Each law has
set a time limit for filing a complaint. For example, a compliant under the
Occupational Safety and Health Act (OSHA) can be filed thirty days after the
fact at the latest, for the Energy Reorganisation Act the time limit is six
months 173. The recipient office then further has to decide whether the
complaint has merit (often proving the causal relation). If it is decided it does,
the whistleblower can be offered compensation like back pay, reinstatement or
compensatory damages 174.
For years the shape of whistleblower protection varied greatly between
the different states. To try and overcome these stately differences and to give
better protection to whistleblowers the Civil Service Reform Act (CRSA) was
passed in 1978 175. The act appointed the Office of Special Counsel (OSC) to
handle
whistleblower
complaints
and
further
to
protect
them
from
retaliation 176. The CSRA meant a great leap in the history of whistleblowing
protection, whereby; “Now, nearly every federal employee who blew the
Ibid.
Dyck. A., A. More & L. Zingales (2008) Who Blows the Whistle on Corporate Fraud?
Available at:
http://faculty.chicagogsb.edu/luigi.zingales/research/PSpapers/whistle.pdf (25
January 2009)
171 Johnson, C. (2008) A Backlog of Cases Alleging Fraud. Whistleblower Suits
Languish at Justice. In: The Washington Post, July 2, 2008 available at:
http://www.washingtonpost.com/wp-dyn/content/article/2008/07/01 (30 November
2008)
172 Read ‘any person’; so no distinction between private sector employees and public
sector employees. Also citizens can be claim the whistleblower protection.
173 OSHA fact Sheet. Available at: www.osha.gov
174 Johnson, R. (2002) Whistleblowing: When it Works and Why. Lynne Rienner
Publishers: (Boulder & London), 98
175 Dworkin, T. (2007) SOX and Whistleblowing. In: Michigan Law Review. Vol. 105, no.
8, June 2007, pp. 1757- 1780, 1766
176 Ibid.
169
170
[57]
whistle, no matter where they worked or what their issue, would be protected
from retaliation and arbitrary discharge 177”. The CSRA was not a success
straight away. Over the years many lessons were learned about the practice of
receiving and a responsible follow-up of the complaints about suffered
reprisals 178; the OSC “failed to carry out its mandate” 179. This led to several
amendments over the past years (1989, 1994), with the most important begin
the amendment in 1989 whereby the Whistleblower Protection Act was
adjoined to strengthen the OSC 180. Regardless of the rough start, the US
Whistleblowing Protection Act of 1989 is nowadays considered to be unique
worldwide.
Along with the evolvement of whistleblower protection, came the
establishment of the federal fraud hotlines: established systems though which
fraud reports can be made. The first one was established in 1978 in the
Inspectors General offices in federal agencies 181, and many followed, like, for
instance, the US Department of Labour and the Department of Defence both
and the US Government Accountability Office 182. Through these federal fraud
lines, which are often toll free and accessible 24/7, public servants can report
fraud, either anonymously or confidential. Employees are encouraged by
means of posters to come forward and speak up. In 1991 the US Sentencing
Commission’s Guidelines also prescribed telephone services to be offered to
corporate
employees
of
any
for
reporting
and
seeking
advice
about
misconduct 183.
Whistleblower policy and legislation in the US gives ample material to
write a bookshelf about whistleblowing (which scholars have). One might get
the impression that the US can sit back and relax now about all whistleblower
protection. This is not the case. It is good to realise that regardless of the
impressive
whistleblower
infrastructure
in
the
US,
many
flaws
and
discrepancies are criticised and scrutinised. One main point of critique is that
the US whistleblower law is saturated with arbitrary inconsistencies and
contradictions 184. Devine 185 further portrays whistleblowing protective laws as
‘Trojan horses’ whereby the appearance of effective whistleblower legislation
Johnson, R. (2002) Whistleblowing: When it Works and Why. Lynne Rienner
178 At the Merit Systems Protection Board (MSPB)
179 Dworkin, T. (2007) SOX and Whistleblowing. In: Michigan Law Review. Vol. 105, no.
8, June 2007, pp. 1757- 1780, 1766
180 Ibid.
182 See http://www.gao.gov/fraudnet/fraudnet.htm, to get an idea of a federal hotline
183 Trevino, L. et all (1999) Managing Ethics and Legal Compliance: What Works and
What Hurts. In: California Management Review. Winter 1999; 41, 2
184 Devine, T. (2004) Whistleblowing in the United States: The Gap Between Vision and
Law, Culture and Practice.(ODAC & PCaW: London), pp. 74- 100, 83
185 Ibid.
177
[58]
Chapter 3
does not fit the facts, a point also made by Martin 186 specially on the
Australian legislation. Many whistleblower cases are never ‘proven’ and hence
the whistleblower is left with empty hands while already having risked
retaliation by speaking up. Micelli et all 187 found a steady rise in anonymous
reports and pose that this increase could be caused by the failure of protective
whistleblower legislation. The USA has come very far with respect to
protecting the whistleblowing, but their struggles show us that the topic is
highly controversial and will probably never be fully resolved, as the many
published articles on this topic show. Nevertheless, in absence of anything
better other countries are looking at the US to learn.
In the US civil society is filled with players 188 struggling for more
whistleblower rights and protection. For example, 9/11 gave a whole new
impulse to whistleblowing. The Government Accountability Project’s hotline
calls tripled of citizens concerns about homeland, aviation and nuclear
security 189. With an eye to the war on terrorism, citizens were encouraged to
report suspicious acts and individuals. So, in that sense whistleblowing in the
US got a boost. At the same time 9/11 signified the entrance of national
security secrecy rules and proposals which threaten whistleblowers rights 190.
One group I would like to mention in that respect is The National Security
Whistleblowers Coalition (NSWC). The NSWC 191 struggles for legal protection
for homeland security whistleblowers (e.g. CIA, FBI, DIA, NSA), of which most
are currently excluded from the ‘vast patchwork’ 192 of whistleblower protection
legislation. There is no protection for most of the homeland security
whistleblowers who speak up about government wrongdoing or security
breaches. For example, a US officer who would speak up about atrocities
similar to the ones that occurred in Abu Ghraib would not be protected under
any whistleblowing statute 193. The debate on whistleblowing protection by
certain groups and persons demonstrates that whistleblowing protection is
not simply about protecting the highly valued right of the individual to speak
up. Rather, whistleblowing and whistleblowing legislation are very political
186 Martin, B. (2003) Illusions of whistleblower protection. In: UTS Law Review, No. 5,
2003, pp. 119- 130
187 Micelli, M. et all. (1999) Can Laws Protect Whistle-Blowers? Results of a Naturally
Occurring Field Experiment. In: Work and Occupations, Vol. 26 No. 1, February 1999,
pp. 129- 151
188 For example: The National Whistleblower’s Center at www.whistleblowers.org
Lessons Learned. In: (Calland. R. & G. Dehn eds.)Whistleblowing Around the World.
191 Goodman M., C. Crump & S. Corris (2007) “Disavowed: The Government’s
Unchecked Retaliation against National Security Whistleblowers”. (American Civil
Liberties Union: 2007)
192 Ibid., 4
193 Or another example, the warrantless surveillance of citizen’s phone calls and
emails. Ibid., 4
[59]
and is an issue of power 194; it seems to be about protecting those who can
speak up about matters which support and not oppose the group in power.
They distinguish between good and bad secrecy and thus add moral content of
the transparency quest. It will be interesting to see the developments in
whistleblowing legislation under the Obama Office.
Figure 2: Poster ‘Qui Tam’ for the US False Claims Act
3.2
THE US EXPORTING WHISTLEBLOWING
Whistleblowing has become a widely spread and often performed practice in
the US. The discussion on cultural values and whistleblowing has turned out
to be a whole new (and interesting) field of research and was fired up when the
practice of whistleblowing crossed borders. The US is devoted to exporting the
practice of whistleblowing across borders, especially when it comes to the
public sector. A clear sign of this commitment is visible in the field of
immigration policy. In year 2000 a court decided that immigrants could be
granted asylum based on demonstrated whistleblowing history (against
See also: Vandekerckhove., W. (2007) Whistleblowing and Organisational Social
Responsibility. (Ashgate Press: Hamshire)
194
[60]
Chapter 3
corrupt government officials) 195.
In chapter six of Johnsons work ‘Whistleblowing”, she convincingly
illustrates that the export of whistleblowing was not just a coincidence, but
rather a though-through strategy by US officials. The rationales for the active
encouragement of whistleblowing practices are: to protect freedom of speech,
to encourage democracy, to increase citizen responsibility and to address
problems of corruption 196. Whistleblowing protection has won its place in the
fight against corruption. Powerful international organisations and players like
the IMF, OECD, USAID, Transparency International, the World Bank and the
UN are all supporters of whistleblower protection in the fight against
corruption. Also important in the US distribution of the whistleblowing
message, is the Government Accountability Project (GAP), a non-profit
organisation. Since 1977 the GAP has been a key player in the whistleblower
infrastructure. Grounded in the principle of solidarity, the GAP strives at
achieving effective freedom of speech legislation and protecting whistleblowers
from retaliation 197. Tom Devine, legal director of the GAP underscores: “Over
and over again, the solidarity strategy has proved the core premise for our
work with whistleblowers: we repeat, in a free society, there is nothing more
powerful than the truth 198”.
Even though the GAP limits their legal representation of whistleblowers
to those who fall under the US laws 199, GAP actively lobbies outside of the US
for more whistleblower rights and protection 200. They are part of a broader
network of US practitioners, advocates, ethicists and academics who strive for
encouraging freedom of speech as part of democracy worldwide 201. The GAP
helps national organisations out with practical issues and they spread the
word where ever they can; “The convergence of globalisation and associated
anti- corruption campaigns has created a compelling necessity to expand the
scope of [GAP’s] work 202”. In 2003 the GAP started the International Financial
Institution
Accountability
transparency
to
Campaign
multilateral
which
development
aims
at
banks,
whistleblowing protection and effective employee concern
bringing
mostly
more
through
programs 203.
Ibid., 129
Ibid., 115
197 Devine, T. (2004) The USA: Government Accountability Project. In: (Calland. R. & G.
Dehn eds.) Whistleblowing Around the World. Law, Culture and Practice.(ODAC &
PCaW: London), pp. 158- 168
198 Ibid., 159
199 Ibid.
200 Johnson, R. (2002) Whistleblowing: When it Works and Why. (Lynne Rienner
Publishers: Boulder & London), 117
201 Ibid., 115
202 Devine, T. (2004) The USA: Government Accountability Project. In: (Calland. R. & G.
Dehn eds.) Whistleblowing Around the World. Law, Culture and Practice.(ODAC &
PCaW: London), pp. 158- 168, 161
203 Ibid, 163
195
196
[61]
3.3
THE UK PUBLIC DISCLOSURE ACT (1998)
One of the first international journeys of the GAP was its active support and
assistance to the British Public Concern at Work in their struggle for the
passage of the Public Disclosure Act in the UK. The UK Public Disclosure Act
(PIDA) of 1998 is the first much referred to whistleblower protection act
outside the US. In the whistleblower debate in the Netherlands in the spring
2008 the PIDA took a role model position.
National scandals in the late 1980’s in the UK spurred the
whistleblowing debate in the UK 204. Horrific ‘open secrets 205’ which had been
going on for many years had been disclosed; the British public was appalled
and shocked. As a result of this public concern, the Public Interest Research
Centre (PIRC) started a research project on self regulation and whistleblowing
in UK companies. The results of the report in 1990 was that employees often
know much about risks and violations going on in the organisation, but
remain silent because reporting mechanisms are not in place 206. Lobbyers for
whistleblowers protection pushed for action arguing that if the UK really
wanted to regard itself as the ‘mother of democracy’ it should start by
protecting fundamental democratic rights like freedom of information and
speech 207. As a result of the PIRC report and public pressure the UK non
profit organisation Public Concern at Work (PCaW) 208 was established in 1993.
The PCaW formed an independent body to address accountability in the
workplace 209. From that point on, it was one of the main players in the debate
on whistleblowing protection in the beginning of the ’90. As mentioned above,
the US GAP was actively involved in supporting the PCAW to reaching a
breakthrough in UK legislation. In 1998 they succeeded; the PIDA was finally
enacted, in 1999 it came into force. Nowadays, the PCaW remains the main
actor in whistleblowing infrastructure in the UK and continues informing and
supporting employees who want to raise concerns with their employers.
Among other things, the PCaW manages a helpline which offers citizens
practical assistance and advise, organises in–house trainings and strives at
Oakley, E. & A. Myers (2004) The UK: Public Concern at Work. In: (Calland. R. &
G. Dehn eds.) Whistleblowing Around the World. Law, Culture and Practice.(ODAC &
PCaW: London), pp. 169- 179, 169
205 Cohen, S. (2001) States of Denial. Knowing about Atrocities and Suffering. (Polity:
Cambridge), 258
206 Oakley, E. & A. Myers (2004) The UK: Public Concern at Work. In: (Calland. R. &
PCaW: London), pp. 169- 179, 169
207 Vinten, E. (1994) Whistleblowing Subversion or Corporate Citizenship? (St. Martins
Press: New York), 4
208 For information see www.pcaw.co.uk
209 Oakley, E. & A. Myers (2004) The UK: Public Concern at Work. In: (Calland. R. &
PCaW: London), pp. 169- 179, 170
204
[62]
Chapter 3
changing whistleblower policies and attitudes 210. Further, the PIDA has served
as a role model for other countries’ whistleblowing regulation (plans), and as a
result policy makers have turned to the PCaW for advice and assistance. The
PCaW has been successful in creating established position in the international
whistleblowing arena.
The PIDA does not explicitly encourage or oblige any employee to blow
the whistle; it is set up in order to protect whistleblowers from retaliation 211.
Under the PIDA public sector, private sector and voluntary sector employees
are protected. The PIDA has a broad scope: criminal and civil offences,
miscarriages of justice and dangers to health and safety fall under the
PIDA 212. For a whistleblower to be protected under the PIDA, the disclosure
must be done “in good faith”. Further, the PIDA has a layered structure of
requirements for three routes of disclosure: 1) internal disclosures, 2)
disclosures to regulatory bodies and 3) disclosures to a wider public
(media) 213. Next to setting out whistleblower protection provisions, the PIDA
requires participation of all employers; they have to have a whistleblowing
procedure and have to actively promote it.
Since the PIDA became in force in 1999 214, the number of applications
made to the Employment Tribunal under the PIDA has constantly increased.
In the year 1999/2000 the number of application was 157, and in the year
2006/2007 this number rose to 1356 215. The PIDA is often characterized as
being effective and internationally looked upon as benchmark of public
interest whistleblowing, but according to Anna Myers of the PCaW “at home it
is not clear how widely known or understood the law is by UK citizens 216”.
With the birth of the PIDA, dispute about the working and effectiveness of the
act has not ended. Deconstructing the PIDA does further, for example,
legitimises the question whether the PIDA offers genuine or illusory
protection 217. Discussions 218 about the fundamental issue whether legislation
Ibid., 170- 174
Gobert, J. & M. Punch (2000) Whistleblowers, the Public Interest, and the Public
Interest Disclosure Act 1998. In: The Modern Law Review, Vol. 63, No. 1. (Jan. 2000),
pp. 25- 54, 38
212 PCaW (2007) Public Disclosure Act. Guide to Law & Practice, January 2007
available at: www.pcaw.co.uk 911 December 2008)
213 Gobert, J. & M. Punch (2000) Whistleblowers, the Public Interest, and the Public
pp. 25- 54, 38- 46
214 The PIDA became in force in July 1999, in October 1999 the PIDA also became in
force in Northern Ireland
215 PCAW (2009) “Latest Figures for PIDA Applications”
available at: http://www.pcaw.co.uk/law/pidalatestfigures.htm (10 January 2009)
216 Myers, A (2004) Whistleblowing - The UK Experience. In: (Calland. R. & G. Dehn
eds.) Whistleblowing Around the World. Law, Culture and Practice.(ODAC & PCaW:
London), pp. 101- 118, 118
pp. 25- 54, 46
218 For a good reading on many issues within the whistleblowing debate see:
210
211
[63]
can ever protect a former whistleblower from all sorts damage and/of
retaliation are not unique to the UK and will – most likely – not fade away any
time soon.
Regardless of the disputed flaws in the UK PIDA, it does often function
as a role model for other countries which are in the process of setting up
whistleblower legislation. This is definitely the case in the Netherlands were
scholars and politicians are calling for a Dutch version of the PIDA. In the
public debate there seems to be a preference for referring to the UK example
over the US example. Maybe the Dutch and other Europeans find the PIDA
more appealing as they prefer the British over those ‘crazy’ Americans who
might be taking it a bit too far with protecting the hero.
3.4
THE NETHERLANDS AND THE WHISTLEBLOWING DEBATE
There is no real need to getting deeper into the whistleblower protection
legislation in the Netherlands because their simply is not that much to tell.
Many agree, and as a result of a revealing report of the Ministry of Internal
Affairs in April 2008 219 the debate on whistleblowing protection was fired up.
Subsequently, Dutch officials and non-officials looked desperate in finding
their equivalent of the UK Public Disclosure Act; an act that will protect public
sector employees from retaliation after blowing the whistle. One of researchers
was Marc Bovens. He introduced the Dutch name for the whistleblower in his
earlier work on responsibility and organisation in 1990 220. This name was ‘de
klokkenluider’, which literally means ‘the bell ringer’. International scholars
have expressed themselves rather enthusiastic about the Dutch term, as it
would “favour a particular legitimation for whistleblowing 221”. The term would
symbolise the hero status of the whistleblower, since the ‘bell ringer’ used to
be someone who would warn the community for danger. Johnson 222 mentions
that, for this similar reasoning, the GAP has undertaken efforts to introduce
that (translated) term in countries where no applicable term yet exists or
where a negative description prevails (‘snitch’).
Even though the term itself can say something about the way
Gobert and Punch (2000) “Whistleblowers, the Public Interest, and the Public Interest
Disclosure Act 1998”
219 Ministry of Internal Affairs (2008) Evaluatie klokkenluidersregelingen publieke
sector. April 2008. Available at:
www.minbzk.nl/aspx/download.aspx?file=/contents/pages/92243/bijlage2evaluatiekl
okkenluiderregelingen.pdf (10 January 2009)
220 Bovens, M. (1990) Verantwoordelijkheid en organisatie [English: Responsibility and
Organization]. Beschouwingen en aansprakelijkheid, institutioneel burgerschap en
ambtelijke ongehoorzaamheid.(Tjeenk Willink: Zwolle)
221 Vandekerckhove, W. (2007) Whistleblowing and Organizational Social Responsibility.
A Global Assessment. (Hampshire & Burlington: Ashgate), 243
[64]
Chapter 3
whistleblowing is perceived within a society, I believe the societies own past
experiences with whistleblowers gives the specific term meaning. In the
Netherlands, for example, the common perspective on a ‘klokkenluider’ is not
shaped because the Dutch people realise that a ‘klokkenluider’ is someone
who warns the community for danger. This is not the way the human mind
works. The way the Dutch look at ‘klokkenluiders’ is rather shaped by our
own klokkenluiders narratives, like the ones of Ad Bos, Paul van Buitenen,
Tim Schaap and Fred Spijkers. Lately the official stories about these Dutch
whistleblowers have become scrutinised by academics, media and the public.
Ad Bos, the individual who ended the public secret of the biggest fraud case
(in Dutch Bouwfraude) in Dutch history, the story of Fred Spijkers, a
whistleblower at the Dutch Ministry of Defence, and the published results
were shocking. The conclusions were clear: it is a dirty world and new
whistleblower protection legislation in the Netherlands is needed.
The conclusion of the report of the Ministry of Internal Affairs 223 was
actually not that special. Evidently, the report was very detailed and
conclusive. Nevertheless, the overall message of the report “the current
whistleblower protection in the Netherlands is inadequate to non- existing”
was nothing new. In 2003 the STAR 224, the Dutch Labour Foundation,
published a report concluding with the recommendation to all organisations to
implement safe reporting procedures. In 2006 the Social Economic Council 225
(SER) followed with their evaluation of ‘self regulation whistleblowing
procedures’. Their conclusion was not surprising; as the STAR they also called
for more whistleblower protection. More recently, the devastating report about
the case Fred Spijkers 226, the man who was forced by the Ministry of Defence
to lie to the widow about the Ministry’s responsibility in her late husbands
death, also gave rise for the call of more protection for whistleblowers. Finally,
the in March 2008, the Netherlands Court of Audit published their result of a
meta analyse on “Spotting Fraud” 227. The authors point at the big
discrepancies between spotted and reported signals of fraud and come to the
more or less the conclusions as their processors, though focussing more on
the reporting dynamics and less on the protective legislation.
One of the biggest mysteries in the history of Dutch whistleblower
discussion is what ever happened with the published results of an experiment
held by the FNV, the Dutch public service trade union, in the year 2000 228.
The experiment entailed the three days existence of an (anonymous) hotline.
Ministry of Internal Affairs (2008) Evaluatie klokkenluidersregelingen publieke
sector. April 2008.
224 STAR (2003) Verklaring inzake omgaan met vermoedens van misstanden in
ondernemingen. 24 juni 2003, Publicatienr. 6/03 (Stichting van de Arbeid)
225 SER (2006) Evaluatie zelfregulering klokkenluidersprocedure.(15 May 2006)
226 Oest, van S. (2008) Rechtsstaat zonder zelfkritisch en zelfreinigend vermogen. In:
Openbaar Bestuur. Nummer 3, March 2008, pp. 8-18
227 Algemene Rekenkamer (2008) Signaleren van fraude. (11 March 2008)
228 FNV (2000) Meldlijn klokkenluiders eindrapportage. (25 May 2000)
223
[65]
In total 119 calls came in which were all of a serious nature. Some of the
examples given do not leave doubts about whether a hotline would be used if
implemented. One complainant talked about how he was forced to keep his
mouth shut about the high levels of asbestos in the workplace, another about
structural sexual harassment on minors by their caretakers, yet another
about transplants of infected animal organs. Furthermore, a great numbers
were about serious cases of fraud and corruption. Nonetheless, we did not see
any actual policy making response in period as a result of these results. In the
‘final’ report ‘meldlijn klokkenluiders’ in 2000 did not yet encompass part
three of the report, the ‘analyses by M.U. Consult B.V.’, which was – for
unknown 229 reasons – not added until the year 2008.
Whatever
the
story
was,
this
illustration
makes
clear
that
whistleblower protection legislation has, for many years, not been top priority
for policy makers. The revealing is the report of Ministry of Internal Affairs in
April 2008, gave the impression that this was all about to change. The
Minister Guusje Ter Horst promised to come up with plan for better
whistleblower protection policy. Newspapers and television programs were
covering the whistleblower issue. There was even a television show, supported
with a all covering website 230 especially set up. It was almost like the US show
60 minutes 231 where whistleblowers have been given voice for years 232. Former
whistleblowers stood up hoping for the longed listening ear. For a while it even
looked like they had even found a royal one. In May the brother-in-law of
queen Beatrix, Pieter van Vollenhoven, offered to help in a fundamental ways.
In July, after conversations with members of parliament, he reconsidered and
pulled back. After July the storm calmed down; the news items on
whistleblower website slowly went from one a hour to one a month. The
website administer did not even take the effort of putting the latest new of
whistleblower Paul Schaap on.
It looks like the whistleblower hype in the Netherlands has come to an
end. It will probably be revived when Guusje ter Horst finally comes forward
with her new ideas on whistleblowing regulation. We will wait and see. Having
written the account above, the question about why the whistleblowing debate
suddenly reached its high point, seems legit. Probably a convincing analyses
would come out of a study about the amplification processes between media,
politics and scientist. But then: what caused the amplification? We could
easily philosophize about how the whistleblowing hype could be seen as a
manifestation of the societal processes, as described in chapter 1. We are
seeing more and more calling for integrity and good governance on different
Unknown, but suspectable
http://www.klokkenluiders.tv/
231 http://www.cbsnews.com/
229
230
[66]
Chapter 3
fields. Nevertheless, the Dutch example shows that, regardless of the
transparency quest as described in chapter 1, the way to protecting those who
materialise this quest seems long. There appears to be great hesitation for
creating actual whistleblower protection.
3.5
THE REST OF THE WORLD
Most countries have not been untouched by the whistleblower debate. Also
more scholars are addressing the subject whistleblower protection in various
countries. Again - and I cannot underscore this too often - no country comes
even close to the US whistleblower environment. The countries outside the US
becoming better involved in whistleblowing as a result of three manners.
Firstly, we see other countries developing (and struggling with) whistleblowing
protection in national law, like we saw with the example if the Netherlands.
Some countries are far in establishing there own version of whistleblower
protection legislation, others are not. Examples of countries which have
(mention-worthy) whistleblower protection in national law are: Australia
(Public Interest Disclosure Act 1993), New Zealand (Protected Disclosures Act
2001), Israel (Employees Protection Law, 1997) Japan (Whistleblowing
Protection Act 2004, in effect 2006) and South- Africa (Protected Disclosures
Act 2000). Reading the historical accounts 233 of how these laws show one
great similarity in the sense that they were all born out of the discovery of
national scandals. The contents of the regulations vary greatly according to
who is protected (public or private sector employees), what kind of disclosed
information is protected, how the disclosure can be made (internal or external)
or motive (in ‘good faith’). Many countries besides the aforementioned, like the
Netherlands, are in a evaluating stage when it comes to their whistleblowing
legislation. In Spain there exists no protection for whistleblowers under
national law. Germany and France offer protection for their public servant;
however
the
effectiveness
is
being
questioned 234.
Whistleblowing
infrastructure in Western Europe is developing. Probably the Belgium scholar
Vandekerckhove in his recent work on whistleblowing says it best: “There is
no way to avoid the discussion. Whistleblower protection is coming! 235”.
Secondly,
we
see
those
countries
which
might
be
developing
economically, but who are claimed to stay behind in the democracy process.
These countries, which are (supposedly) culturally embedded with practices of
corruption, are the focus of the anti corruption networks, like the OECD,
USAID and Transparency International. Whistleblowing protection is one main
See several accounts in: Calland. R. & G. Dehn (eds.) (2004) Whistleblowing Around
the World. Law, Culture and Practice (ODAC & PCaW: London)
234 See for latest status:
http://www.transparency.org/news_room/in_focus/2007/whistleblowers
235 Vandekerckhove., W. (2007) Whistleblowing and Organisational Social
Responsibility. (Ashgate Press: Hamshire), 1
233
[67]
element
of
the
international
fight
against
corruption;
one
part
of
whistleblowing protection is granting the potential whistleblower with the
possibility to report anonymously. The GAP is actively involved in assisting
other countries with their practical issues like installing 24/7 hotlines.
Although the whistleblowing protection under the anti- corruption struggle
was originally aimed at public servants, protection within the corporate
environment is also actively sponsored.
Finally, we see the rest of the world getting more acquainted with
whistleblowing
through
business
compliance
regulation.
Multinational
corporations which are quoted on the New York stock exchange have to
comply to the Sarbanes Oxley Act, which include far reaching whistleblower
protection provisions. These whistleblower rights are granted to all employees,
also to those who are working in units outside the US. Through these
business practices countries all over the world are facing discrepancies
between
the
compliance
attitude
and
the
national
attitude
towards
whistleblowing. In some countries we have seen great resistance, in others
new debate about the rights of the whistleblower arose. Whatever the (claimed)
national attitude against whistleblowing is, whistleblowing as good business
practice very much seems to be here to stay. I will further discuss the impact
of whistleblowing as business practice on the whistleblower shift in the next
part.
CONCLUDING REMARKS
In this paragraph I wanted to convince the reader of the unique position the
US society holds when it comes to the practice of blowing the whistle. The
strength of the freedom of speech of the individual is grounded in their way of
thinking, which has been symbolised in US legislation since 1863. Regardless
of the flaws of the system, which have rightfully been pointed out, we cannot
deny that the web of whistleblower protection somehow contributes to the
acceptance of whistleblowing. Whistleblower practice, like the use of hotlines,
is no novelty. This is not the case for other countries who are just becoming
acquainted with whistleblowing practice. The level of whistleblowing protection
legislation outside the US and to a certain extent the UK, is very low to
nothing. Also it is clear that regardless of the impressive legal infrastructure to
protect whistleblowers, there always seem to remain many flows and
difficulties. More importantly: no legislation of any kind will ever be able to
protect the whistleblower from stigmatization and outcasting.
The transparency quest and the non-acceptance of silence as
described in the previous chapters, appear to be coming with a paradox: on
the one hand we are asking people to speak up, but when they do this is not
always welcomed. This is especially the case within the whistleblowing
[68]
Chapter 3
situation; the situation whereby the witness is tied to the perpetrator
environment. The transparency quest and the treatment of the whistleblower
remain in conflict: on the one hand society is calling for openness and the end
of smouldering silence, on the other hand we do not welcome the
embodiments of this aspiration. Miethe, the author of Whistleblowing at Work.
Tough Choices in Exposure Fraud, Waste and Abuse on the Job, probably hits
the nail on the head: “If whistleblowing were more socially acceptable,
financial and other incentives for disclosing misconduct, as well as hot lines
and the passage of legislation to encourage whistleblowing, would be
unnecessary 236”.
236
[69]
4
The Emergence of
Corporate Whistleblowing
Schemes
INTRODUCTION
Alongside the described societal developments came the corporate integrity
hotline; a mechanism to encourage more breakers of silence, in other words:
to invoke (internal) whistleblowers. These corporate hotlines are different in
the sense that they are not fishing in the same pool as other reporting
initiatives like crimestoppers. Most societal report spurring initiatives are
aimed at the witness or the victim within the bystander situation. In contrary,
the internal whistleblowing schemes are aimed at the observers within the
whistleblowing
situation;
the
observer
is
bound
to
the
perpetrator
environment. It is good to keep this difference in mind. In this chapter I will
describe the emergence of these corporate internal whistleblowing schemes
and see how these schemes respond to the whistleblowing situation.
Chapter 4 The Emergence of Corporate Whistleblowing Schemes
4.1
SARBANES- OXLEY ACT (2002)
The start of the new century meant new strong impulses in the whistleblower
environment. On the one hand society was confronted with 9/11, which
fuelled new emphasize on homeland security over privacy. Getting everyone
involved in the war on terrorism reactivated the US whistleblower support and
activity. On the other hand society was with the exposure of some of the
biggest financial scandals (Enron, Andersen, WoldCom, Parmalat) in US
history. Subsequent to the Enron coverage, “a skyrocketing number of
whistleblowers from other publicly traded companies were calling hotlines and
e-mailing
the
Securities
questionable business
and
Exchange
Commission
to
report
other
practices.” 237
As a result of the business scandals, confidence in the stock market
decreased and the New York Stock Exchange called for reform 238. In 2002 the
Sarbanes Oxley Act (SOX) was passed by congress; a powerful new paradigm
started. SOX, which applies to all companies which are quoted on the NY
Stock Exchange, legislates good governance and accounting reform. A large
part of the implementation and enforcement of SOX is left to the Securities
and Exchange Commission (SEC). SOX provides the SEC with the possibility
to give civil penalties and raised SEC’s budget 239. Among others, SOX sets up
a new oversight for accounting industry, sets out maximum time periods for
the lead auditor, and reduces the range of services auditors can offer 240. SOX
further requires that the CEO and CFO of a public company certifies the
accuracy of their financial statements. If a certification if proved to be false,
the penalty can run up to a 5 million $ fine or a 20 years prison sentence.
Section 404 handles the subject of internal controls; it requires an
ongoing implementation, evaluation and audit of the company’s internal
controls 241. It is controversial one, partly because of the extremely high costs
that have to be spend on setting up the internal audit 242. Section 404 is
about: “[…] creating better sight lines so that more people (including public
auditors) can more easily observe and verify the movement and positioning of
assets and information” 243. Section 404 is, in essence, about openness and
Publishers: Boulder & London), ix
238 Trevino, L. & K. Nelson (2007) Managing Business Ethics. Straight Talk About How
To Do It Right.(John Wiley & Sons: Hoboken), 39
239 Dyck. A. , A. More & L. Zingales (2008) Who Blows the Whistle on Corporate Fraud?
Available at:
faculty.chicagogsb.edu/luigi.zingales/research/PSpapers/whistle.pdf (25 January
2009)
240 Ibid.
241 Langevoort, D. (2007) The Social Construction of Sarbanes- Oxley. In: Michigan Law
Review. Vol. 105, No. 8 June 2007, pp. 1817- 1855, 1830
242 Ibid.,1828
243 Ibid.
[72]
transparency. One task that is given to the audit committee under section
404, is monitoring whistleblower incentive 244.
The Enron and WorldCom (and Arthur Anderson) scandals showed the
role of employees in business compliance in two ways. Firstly, as witnesses;
corporate employees played a big role in bringing the scandals to light.
Secondly, as victims; corporate employees suffered personal losses by the
corrupt practices of management 245. Langevoort 246 argues that the scandals
created fear among employees for their jobs and retirement savings, which
now makes them more alert to observing misbehaviour. Therefore, it was not a
surprise that whistleblowing as a mechanism for picking up signals by
witnesses and as a mean for potential victims to speak up, was incorporated
in SOX. SOX represents the value US Congress holds towards whistleblowing
as a vital element of the detection and deterrence of wrongdoing 247. “The
language of the Sarbanes- Oxley Act […] leaves no doubt that Congress
intended whistleblowing to be an integral part of its enforcement mechanisms.
The Act attempts to encourage and protect whistleblowers in a variety of ways,
including providing for anonymous whistleblowing and establishing criminal
penalties for retaliation against whistleblowers” 248. Before SOX, many
corporate employees were already protected under the federal statutes as
discussed above. Nevertheless, SOX was a great leap forwards in US
whistleblowing protection. According to Devine, the employees of public traded
companies “reached the promised land in US law for disclosures evidencing
misconduct that threatens shareholder investments – the right to a jury trial
in district court under the most sympathetic legal burdens of proof 249”.
SOX has three sections aimed on whistleblowing 250. The main one is
section 806 which grants protection against any kind of retaliation by the
company, against him who has reported to an authorized person within the
company. Section 806 guarantees the non-retaliation right and further gives
the right to bring a civil suit, in case the non- retaliation right has been
breached 251. Just as with other federal and state whistleblower statutes, those
complaints end up at the Occupational Safety and Health Administration
(OSHA) for investigation. Section 806 is unique in the sense that it specifically
appoints internal whistleblowing as an appropriate channel; earlier (US) state
Ibid., 1831
Langevoort, D. (2007) The Social Construction of Sarbanes-Oxley. In: Michigan Law
246 Ibid.
247 Dworkin, T. (2007) SOX and Whistleblowing. In: Michigan Law Review. Vol. 105,
No. 8 June 2007, pp. 1757- 1779, 1758
248 Ibid., 1757
Law, Culture and Practice (ODAC/ PCaW: London), pp. 74- 100, 75
250 Ibid., 1759
251 Ibid., 1761
244
245
[73]
whistleblower statutes designate only external reporting points 252.
Section 1107 sets out the penalties for those individuals or companies
which knowingly and intentionally retaliate against a whistleblower 253. The
penalties can vary from a fine to imprisonment up to ten years. SOX is unique
in that it is the only federal whistleblower legislation which has criminal
penalties. Furthermore, 1107 is very broadly written so that it can be used by
‘any person’, so also non- organisational members. According to Dworkin this
element makes this section probably the most important, “because it could
develop in a more general whistleblower protection statute 254”.
The third section on whistleblowing in SOX, is section 301, which
requires that audit committees of covered companies to offer their employees a
way of reporting anonymously about questionable accounting or auditing
issues 255. Also, procedures to receive and handle these complaints should be
in place. The provision of anonymous reporting is unique among other
whistleblower statutes; no statute before SOX had this requirement. In part
4.4 I will further discuss how section 301 led to the Internal Reporting
Procedure and a new impulse to the Hotline industry.
Sarbanes- Oxley has been enacted for six years; and it is still being
contested. Some underscore that the SOX was enacted rather hastily and
therefore omitted to address some fundamental implementation issues 256. One
matter that seems to have been neglected and for which case law will have to
give the answer, is the global reach of the whistleblower protection provisions
in SOX 257. There has also been critique on the strength of the whistleblowing
provisions in SOX; the whistleblower’s road to justice is extensive and success
is an ‘uphill battle’ 258. Some argue also that SOX’ whistleblower provision is
weak 259 and ineffective 260 because it does not spur whistleblowing because no
financial incentives are offered, like with the False Claims Act. Regardless of
the criticism, SOX undoubtedly indicated a critical moment in whistleblowing
history; it represented the (re)birth of internal whistleblowing and a new focus
on anonymous reporting.
Ibid., 1760
Ibid., 1764
254 Ibid.
255 Ibid., 1761
256 Langevoort, D. (2007) The Social Construction of Sarbanes-Oxley. In: Michigan Law
No. 8 June 2007, pp. 1757- 1779, 1774
258 Ibid., 1765
259 Ibid., 1773
260 Dyck. A., A. More & L. Zingales (2008) Who Blows the Whistle on Corporate Fraud?
Available at: faculty.chicagogsb.edu/luigi.zingales/research/PSpapers/whistle.pdf (25
January 2009)
252
253
[74]
4.2
THE WHISTLEBLOWING HOTLINE PRACTICE SPREADS
Before SOX, US corporations were already held to behaviour rules through the
Corporate Sentencing Guidelines of 1991. These guidelines also encouraged
corporations to establish a well communicated whistleblowing procedure and
hotlines were specifically mentioned as an appropriate mechanism 261. Offering
anonymity was not a prerequisite of the Sentencing Guidelines of 1991.
According to Dworkin 262, whistleblowing was hardly spurred with those
guidelines, which perhaps was the reason why SOX did chose to incorporate
anonymity as requirement.
So, for the US companies and their employees the hotline culture was
nothing new; many US companies had already arranged a hotline facility
under
the
Sentencing
Guidelines
of
1991.
SOX
fuelled
the
hotline
environment because it made safe reporting obligatory for public companies to
comply with the specific requirements of the whistleblowing procedure,
including section 301 on anonymity. For US companies Sarbanes Oxley it
signified a revival of the US corporate hotline environment.
In contrary, for employers and employees in other parts of the world
the whistleblower provisions under SOX did signify a new era. Western Europe
was one of the regions were companies were confronted with the whistleblower
provisions under SOX. This occurred in three ways: through hosting
multinationals that are listed to the New York Stock Exchange, through a
national version of SOX and through the growing acceptance of whistleblowing
as good business practice and proved fraud deterrence instrument.
The most direct way that European countries face the whistleblower
provisions of SOX, is in those cases when SOX applies. Units of New York
Stock Exchange listed companies which are located in Europe are to comply
to SOX and therefore should implement a safe way of reporting anonymously
under section 301. European countries that are listed in the New York Stock
exchange are obliged to facilitate this safe reporting channel. Through these
companies, the employees, often European citizens are getting familiar with
the whistleblower practices. The foreign reach of SOX has not yet been
decided upon
and might
be the biggest
challenges of
SOX 263.
The
implementation of section 301 might be relatively simple, section 806 poses
complications. Which employees (nationality, based country) fall under the
whistleblower protection under section 806 is much more complicated 264.
Case law in the upcoming years will have to give outcome.
Dworkin, T. (2007) SOX and Whistleblowing. In: Michigan Law Review. Vol. 105,
No. 8 June 2007, pp. 1757- 1779, 1771
No. 8 June 2007, pp. 1757- 1779, 1772
263 Langevoort, D. (2007) The Social Construction of Sarbanes-Oxley. In: Michigan Law
No. 8 June 2007, pp. 1757- 1779
261
[75]
As a result of Sarbanes Oxley, European countries followed with
drafting their own corporate governance code. In the year 2003 France and
the Netherlands were the first with presenting a national corporate governance
code. Other countries, like Sweden (in 2004), Belgium (in 2004), Germany
(2006), Spain (2006), the UK (2006) and Italy (2006) followed 265. Most of the
national governance codes follow the recommendation of the European
Union 266 which encouraged the practice whereby the noted that many of the:
“(…) codes adopted in Member States tend to rely on disclosure to encourage
compliance, based on the ``comply or explain'' approach: companies are
invited to disclose whether they comply with the code and to explain any
material departures from it. This approach enables companies to reflect sector
and enterprise-specific requirements, and the markets to assess the
explanations and justifications provided 267”. Whether or not ‘whistleblowing’ is
prescribed as best practice varies by national governance code.
The national corporate governance codes and the recommendations of
the European Commission have led to a further acquaintance with
whistleblowing in the corporate environment. Also, whistleblower procedures
are increasingly being promoted as best business practice. Key international
players (OECD, UN, Transparency International, ICC) in the fight against
corruption. Most of these have also focussed drafted recommendations on
good business practices 268 and while doing do have embraced whistleblowing
as a good business practice. In 2005 the Partnering Against Corruption
Initiative 269 (PACI) was founded by the World Economic Forum. The PACI
works with the signature structure: private companies sign up 270 to commit to
the stated business principles. The PACI derives from the Transparency
International’s business principles for countering bribery and hence it
prescribes
whistleblowing
mechanisms
as
requirement
of
the
PACI
programme. In the recent years, the big international accountancy firms 271
have not stayed behind in embracing the whistleblowing as fraud deterrence
mechanism. Grand surveys and studies underscore the role of employees in
detecting
fraud.
As
a
result
the
accountancy
world
has
promoted
Mouthaan, E. (2007) The Audit Committee from a European Perspective. In:
European Company Law, February, Vol. 4., issue 1, pp. 10- 18
266 Commission of the European Communities (2005) Recommendations on the role of
non-executive or supervisory directors of listed companies and on the committees of the
(supervisory) board, 15 February 2005, 2005/162/EC. Available at:
www.ec.europa.eu/internal_market/company/independence.
267 Mouthaan, E. (2007) The Audit Committee from a European Perspective. In:
European Company Law, February, Vol. 4., issue 1, pp. 10- 18, 12
268 Transparency International & Social Accountability International (2003) Business
Principles for Countering Bribery. June 2003
269 World Economic Forum (2005) Partnering Against Corruption Initiative (PACI)
270 Same set-up as the UN Global Compact
271 PriceWaterhouseCoopers (2007) Economic crime: people, culture and controls. The 4th
biennial Global Economic Crime Survey.; Ernst & Young (2007) A Survey into Fraud Risk
Mitigation in 13 Countries; KPMG (2007) Profile of a Fraudster. Survey 2007
265
[76]
whistleblowing or the introduction of a hotline as an essential element of the
company’s risk management policy or have marked the whistleblowing policy
as key ‘entity level control’.
4.3 INTERNAL WHISTLEBLOWING AS RESPONSIBILISATION
Critical voices on the system were already raised as a result of the corporate
scandals in the beginning of the century, but now with the new economic
crisis those appear to be heard. “Business has become the most controversial
institution in society 272”. After the corporate scandals (Enron, Parmalat,
WorldCom) in the US, shock and awe made room for modifications of the
system. We saw the entering of rules and regulations of internal and external
controls. Newton, an professor of ethics describes the issue as follows:
“Liberalism ultimately destroyed what I call the Village: the natural
community that placed limits on human vice by the simple mechanism
of
transparency
and
moral
consistency,
and
that
destruction
precipitated the scandals we live today (…) The catastrophic collapse of
morality in business came because of the retreat of witnesses – the
shredding of social fabric and the release of the individual to act on his
own convictions (…) 273.”
Corporations are more and more being viewed as administers of the system,
responsible for the restrain of risk which has led to a societal call that
companies ought to behave integer. For business the world has changed in
that new risks came into play due to globalization and new techniques. The
entering of new global threats has had to make space for a new global
approach to corporate social responsible behavior. Furthermore, the new
global networks and communications means make civil society’s scrutiny
affect enormous reputational damage 274. Stakeholders are armed with new
tools to get more information about what is matters concerning their interest;
about the corporate behavior, operations and performance 275. Some would say
that the force of transparency implies that the corporation ‘is becoming
naked 276’.
Under these new circumstances corporations have to start behaving
responsible. Also to regain the trust of society and the consumer. This was the
case after the crisis as a result of the corporate scandals in 2003. “To build
272 Tapscott, D. & D. Ticoll (2003)The Naked Corporation. How the Age of Transparency
Will Revolutionize Business (Free Press: New York), xiii
273 Newton, L. (2006) Permission to Steal. Revealing the Roots of Corporate Scandal
(Blackwell Publishing: Malden), 12 & 76
274 Swartz. P. & B. Gibb (1999) When Good Companies do Bad Things. Responsibility
and Risk in an Age of Globalisation (John Wiley & Sons: Canada)
Will Revolutionize Business (Free Press: New York), xi
276 Ibid.
[77]
trusting relationships and succeed in a transparent economy, growing
numbers of firms in all parts of the globe now behave more responsible than
ever 277”. We can only expect a further rise of the quest for transparency as the
current financial crisis proceeds 278; “When there is a crisis in trust,
transparency seems wanting”. Many companies understand the value of a
corporate social responsible business plan; they see that incorporating
transparency and integrity in their business strategy will deliver significant
payoffs 279. There is, for example, a rise of (updated) business codes which pay
explicitly more attention to transparency, climate change and corporate
governance, because it adheres to the morally justifiable 280.
Also the employee, as the emancipated stakeholder, will have greater
trust when working for a open corporation which will result in better quality
and loyalty. Employees of today have a sense of dignity which makes them
aim for a relationship with their employers which is build on mutual trust and
based on ethical values, practiced every day. The key to this kind of working
environment is transparency 281. Processes of moral silence and worse, moral
deafness at the managements end can have devastating effects on the
employees commitment. Looking at the experience of the employee makes
clear that there are, in fact, two types of corporate transparency: the openness
towards stakeholders outside the company and society as a whole and
internal transparency. The external transparency is the kind has lead to
external regulations, regulations per industry and internal policies. Also,
corporate governance regulations, even though it is an self-regulating tool,
aimed at creating more insight through reporting requirements 282.
Since Jackall 283 in 1989 wrote that seminars and trainings on ethics
are rare incidents, things have changed. Many companies today have set up
internal policies, business codes and principles of ethical behavior. The idea
behind business ethics is that the external control of the law does not cover as
the whole field ethics and can hence never be enough 284. We need so- called
‘soft controls’, fixating on the behavior or culture of people within a certain the
corporation. Openness is part of these internal controls the employee is part
Ibid., xii
Marc Pieth, quoted in: Starink, L. (2009) Vals spel zonder grenzen. In: NRC
Handelsblad, Zaterdag & Cetera, Saterday 21 February
Will Revolutionize Business (Free Press: New York), xiv
280 Kaptein, M. (2008) The Living Code. Embedding Ethics Into the Corporate DNA
(Greenleaf Publishing: Aizlewood’s Mill), 63
281 Ibid., 28
282 Bunt, H. van de & R. van Swaaningen (2004) Privatisering van veiligheid. In: (E.
Muller ed.) Veiligheid. (Deventer: Kluwer), 82- 96, 88
283 Jackyll, R. (1988) Moral Mazes. The World of Corporate Managers (Oxford University
Press: Oxford), 6
To Do it Right. (John Wiley & Sons: Hoboken)
277
278
[78]
of. The Dutch professor of business ethics Kaptein incorporates ‘transparency’
as one condition for getting a business code alive in his ‘code star 285’.
Transparency is about the detection of violations; the higher the level of
transparency, the sooner breaches can be detected and responded to, and
hence the lesser the risk of the ‘tumour’ to grow 286. Together with the other
conditions – clarity, role-modelling, commitment, feasibility, discussability,
enforcement – transparency helps creating the ethical culture. “Broadly
considered, cultural factors influence the incidence of moral silence, deafness,
and blindness, by restricting and channeling the vocabularies by which people
express their moral sentiments and by providing conceptual and symbolic
images as spectacles that limit and distort what they see 287”.
In chapter 1, I spoke about responsibilization: a strategy whereby the
authorities see the help of other societal actors in their fight against
insecurity. When we talk about corporate responsibilization we actually talk
about a two-layered process. The first layer being the government asking the
business as societal actor to take part in the security policies as responsible
players. The second layer is the business, in their turn, asking their corporate
citizens to participate in overall compliance: not just by well-behaving
themselves, but also by functioning as the eyes and ears of the company. The
business has, from the beginning, been one key private actor ally within the
responsibilization strategy 288. The corporate governance regulations was one
‘more or less informal crime control’ and an example of ‘public/private
alliance’ 289. The organization carries its own responsibility to manage its own
crime risks; the government limits its task to formulating the main lines and
pass on part of their responsibility to the companies 290. This strategy was
aimed at creating more transparency within the corporate world, through
enlarging the demands for external accountability 291. The birth of the
compliance function was aimed at creating a bridge between the authorities in
charge and the private companies.
The second layer of corporate responsibilization is that corporations
are doing the same thing as the authorities; namely, asking their ‘corporate
citizens’ to act responsible and take part in enforcing the rules. In many codes
and policies you see that transparency and open communication is part of the
envisioned corporate culture. Key to the code of conduct, business code or
business principles, is making employees aware of: “(…) their vital role and
Kaptein, M. (2008) The Living Code. Embedding Ethics Into the Corporate DNA
(Greenleaf Publishing: Aizlewood’s Mill), 81- 90
286 Ibid., 85
289 Ibid.
290 Bunt, H. van de & R. van Swaaningen (2004) Privatisering van veiligheid. In: (E.
Muller ed.) Veiligheid. (Deventer: Kluwer), 82- 96, 88
291 Ibid.
285
[79]
responsibility in realizing the code in practice 292”. Open communication is
often quoted as an important business value. If – due to the fear of reprisal
direct discussion is not possible – mechanism are put in place in order to
report safely. One internal control mechanism that corporations are putting in
place is an internal reporting system, an ‘Integrity Hotline’. Through phone or
the internet, corporate employees can, anonymously if needed, report on
fraudulent incidents. These reports are usually channeled to one designated
office within the organization. The reporting system are thus internal reporting
facilities.
4.4 THE INTERNAL REPORTING PROCEDURE
Whistleblowing has become an institutionalize method within organisations as
an instrument to enforce rules, which are usually stated in a code of conduct.
Companies offer ways through which their employees can report on
suspicions of fraud and misconduct anonymously. In the US, companies offer
‘hotlines’, 24/7 available free phone services that employees can call to report.
The numbers of calls through the hotlines shows that whistleblower practice
has become ingrained in society. To give an idea about the extent of the
corporate whistleblowing practice in the US, I would like to mention some
numbers from a benchmark report in 2007. In the US, the benchmark of
received reports through whistleblower hotlines lies around 15 per 1000
employees. Variations within the US exist according to employee number,
industry, corporate culture and the awareness program.
The mentioned benchmark report is for US companies only. European
companies are not as far as the US with their corporate whistleblowing
practice. However, they are catching up and are gradually taking over these
practices, offering their employees similar services. As discussed, in Europe it
is not so much the legal requirements, but more social pressure which makes
companies consider offering a hotline to their employees. Under those
circumstances, more and more companies are taking on the whistleblower
practice. With an eye to the hesitation Europe has when it comes to accepting
whistleblowing as detection tool, a reasonable benchmark for European
countries at this stage would be around 5 reports per 1000 employees. No
hotline benchmark report (yet) exists for the European situation.
Companies that have opened a hotline for their employees, should set
out the rules in an internal whistleblower procedure. Such a procedure
contains provisions on the scope of the hotline, the reporting lines and the
different stages in the report handling process. A difference between the US
and countries in Western- Europe (UK not included), is the absence of
292 Kaptein, M. (2008) The Living Code. Embedding Ethics Into the Corporate DNA
(Greenleaf Publishing: Aizlewood’s Mill), 105
[80]
whistleblower protection in national law. In that respect a reporting procedure
has more value in European countries than in the US. The whistleblower is
completely dependent on the protection provided by the corporate procedures.
Most companies grant this non- retaliation right also in their code of conduct.
Another reason why European companies are more in need of a written
procedure, are the local difficulties which I outline in the previous paragraph.
European data protection authorities are demanding the right of the accused
to be protected as well. This can be done by, among others, clearly drawing
the hierarchy of the reporting structure and incorporating the right to
information and the right to rectification in the internal reporting procedure.
Obviously, just opening a whistleblower hotline is not enough. A company
needs to set up an internal – with external help and guidance is necessary –
system to follow up on the complaints coming through the hotline. The follow
up process has different stages: in-taking, investigating, evaluating, measures
taken and feedback. A profound and honest follow up is essential in order to
build and maintain trust with the employees. Adequate organisational
responsiveness is essential to any whistleblower program 293. If the company
asks their employees to speak up, it is only fair that the company listens 294. In
textbox 1 on the next page I have added an example of a successful corporate
internal whistleblowing program.
The justification for a whistleblowing hotline is grounded on two main
pillars: whistleblowing as effective deterrence tool and whistleblowing as a
human right. The first pillar of the rationale for whistleblowing is that is a
proven tool for deterrence. Employees know most about the wrongdoing going
on in their work environment 295. Shocking, but not surprising, are the studies
and past scandals that demonstrate that all these witnesses choose to remain
silent. The consequences of silence can be devastating. Therefore the right
means should be in place to break the silence at an early stage. Scholars also
point to the fact that the role of employee deterrence is becoming more
important: “As business, industries and public sector agencies become ever
larger and decentralized, that is increasingly unlikely that those at the top will
know what is going on at ground level 296”. Under these circumstances,
Miceli, M. & J. Near (1984) The Relationship among Beliefs, Organizational Position,
and Whistleblowing Status: A Discriminant Analysis. In: The Academy of Management
Journal, Vol. 27, No. 4. (Dec., 1984), pp. 687- 705 - Trevino, L. et all (1999) Managing
Ethics and Legal Compliance: What Works and What Hurts. In: California Management
Review. Winter 1999; 41, 148
294 One of the most valuable contributions of Bird (1996) is that he does not only focus
on the person who is supposed to speak up, but also on the person who is supposed to
listen. This dynamic is essential in understanding in the account of the potential
whistleblower. Bird speaks of moral deafness when persons fail to pick up on signals
that something might be wrong.
21- 31, 22
293
[81]
alternative mechanisms for controlling misconduct at work, like regulatory
officials and electronic surveillance are less effective; “As a method for
detecting and exposing misconduct in the workplace, whistleblowing has no
rivals 297”. A whistleblowing hotline provides a low threshold instrument; it is
accessible 24/7 and available in any language. Anonymity is an essential
element because the fear of reprisals is a great barrier to speak up; without
anonymity no reports will be made. Subsequent to the main line of the first
pillar, is the reasoning that having an effective internal risk management tool
in place works preventive 298. Because there is a greater likelihood of getting
caught, potential fraudsters think twice before they commit the an offence. In
this sense, whistleblowing becomes a mechanism for social control. Early
deterrence is vital because it prevents damage to society, the organisation and
other stakeholders. Reputation damage as a result of organisational or
occupational
wrongdoing
being
exposed,
can
be
very
disproportional,
especially with consumers and high- value employees being networked
globally 299. One incident can amplify easily. This process is not only damaging
to the organisation, but also to society which does not benefit from a
distrustful relationship with business. Finally, extreme media exposure is not
in the whistleblowers best interest; being a whistleblower becomes one’s
master status label 300, which dominates all other elements of one’s identity.
The freedom of speech argument is the second pillar of whistleblowing
rationale. Every employee has the right to free speech, it is: “(…) a condition of
existence, which entitles one to express one’s thoughts as one sees fit 301”. A
whistleblower speaks out his thought and judgement and hence false under
the right to freedom of speech 302. The possibility to voice, further gives the
employees the chance to speak up about other important human rights that
are key to the employees work environment 303, of which the most eminent is
the right to a safe and healthy work environment. Whistleblowing gives the
opportunity for employees to claim those rights 304. Giving freedom of speech a
Miethe, T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
298 International Chamber of Commerce (2008) ICC Guidelines on Whistleblowing.
Available at:
http://www.iccwbo.org/uploadedFiles/ICC%20Guidelines%20Whistleblowing%20%20
as%20adopted%204_08(2).pdf
299 Zadek, S. (2007) The Civil Corporation. Revised with a new introductory essay
(Sterling: Earthscan), 12
300 Miethe, T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
Springer), 171
Springer), 178
304 Human rights can also be used against whistleblowing. For example in Europe, the
297
[82]
place through internal reporting mechanism is a distancing from the
perspective that ‘freedom of speech is substantially alien to the corporate
community 305”.
4.5
(LOCAL) ISSUES WITH WHISTLEBLOWING HOTLINES
The introduction of corporate whistleblowing mechanisms to continental
Western Europe 306 is not going without a fight. The circumstances in
continental Europe are different from the US, where the practice of the
corporate whistleblowing hotline originated. This results in dismissive
reactions from both authorities and the European employees, the potential
users of the whistleblower mechanisms.
One argument we regularly come across for explaining the European
dismissive attitude toward whistleblowing practice, is the cultural argument.
Social memory; historical experiences with pressure by authoritarian regimes
to spy and report on political opponents would cause great cultural resistance
against whistleblowing. Past experiences whereby citizens were obliged to
report on suspected opponents of the regime live on in the social memory of
the Europeans would lead to a general dismissal of whistleblowing. I have not
yet found any convincing empirical evidence showing the relationship between
the social memory and the dismissal of whistleblowing, but we can clearly
assume that it does play a part 307.
A key factor in the European objections towards whistleblower
hotlines, is the absence of a broader social support for whistleblowing. In
Europe, we do not see whistleblowers celebrated like in the US. I am not
saying that every whistleblower in the US gets the hero status, the point is
that there are some which do. Symbolic acts, like naming them TIME person
of the year, play a part in building social support for whistleblowing. For
example in the Netherlands, all whistleblower cases which we come to know,
opening of (anonymous) reporting systems is seen as a violation to the right of privacy/
private life. This argument has been put forward by Unions and Works Councils.
305 McAdams, T. (1977) Speaking Out in Corporate Community. In: The Academy of
Management Review, Vol. 2, No. 2. (April), pp. 196- 205, 196
306 When I speak of Europe in this part, I refer to continental Western European
countries, like the Netherlands, Belgium, France, Germany and Switzerland, probably
Spain and Italy as well. Obviously generalizing for all these different countries with all
subcultures is impossible, customized research is needed. However, for the my main
argument of this thesis, these broad lines fit in.
307 Often, we hear talk about how the Europeans resist whistleblowing as a result of
traumatic experiences in their collective memory. Obviously, historical sensitivities
have to be respected. Still, it is odd that South- Africa with their recent history of the
Apartheid, which had an established governmental “[…] apparatus of repression
included the development of a sophisticated spy network”, did succeed in launched
their own whistleblowing protection act. If the Europeans really want to give
whistleblowing a change, social support should be created, partly by consolidating it
national law.See: Dimba, M., L. Stober & B. Thomson (2004) The South African
Experience. In: (Calland. R. & G. Dehn eds.) Whistleblowing Around the World. Law,
Culture and Practice.(ODAC & PCaW: London), pp. 143- 152
[83]
are the horror stories. Those enter the media and hence a whistleblower is
never associated with positive narratives.
One thing which is key in the lack of social support for whistleblowing
in Europe, is the absence of whistleblowing infrastructure. In the previous
chapter I outlined a part of the US whistleblower structure; the legislation and
a part of civil society. I did not even describe the network of whistleblower
advocacy or the numerous whistleblower support groups which exit in the US.
In continental Europe 308, nothing like this exists. Furthermore, the lack of
national protection for whistleblowers contributes to the general non-existence
of social support for whistleblowing. The separate states (or the European
Union) do not give any symbolic tolerating, let alone rejoicing, whistleblowers.
Even though we see movement in the field of national whistleblower protection
legislation,
it
looks
like
the
social
support
in
Western
Europe
for
whistleblowing will have to rise from other societal players.
The absence of whistleblowing protection, entirely or partly, in the
national legislation in most of the European countries, has another effect. In
practice, it means that when an internal whistleblower procedure would
backfire on the whistleblower who is not protected under SOX, there is no
safety net in national law. In the US, when an employee decides to call a
hotline to report on a fraud case and somehow, against the whistleblower
policy, the employee is being fired, the employee can always take the next step
and file a complaint under the applicable federal act. The employee could also
turn for help somewhere in the gigantic whistleblower infrastructure in civil
society for advice and support. The absence of an adequate national
whistleblowing protection safety net and whistleblower support infrastructure
affect the cost benefit analyse that the potential whistleblower makes. “Even
the best internal regulation systems will sometimes fail and employees will feel
compelled to blow the whistle outside 309.”
Data protection authorities in Europe are taking the leading role in
actively resisting the acceptance of hotline practice. They oppose encouraging
of whistleblowing and promote confidentiality over anonymity 310. Their
arguments against whistleblowing procedures can be traced back to one
principle: the protection of the (falsely) accused individual. As we saw in
paragraph 3, US circumstances have lead to an ideological struggle to protect
the whistleblower. The origin of the whistleblower protection legislation, the
False Claims Act, was an act of the individual against the fraudulent
Here, the UK also stands different with their PIDA
Winfield, M. (1994) Whistleblowers as corporate safety net. In: (E. Vinten ed.)
21- 31
310 EU Article Data Protection Working Party (2006) Opinion 1/2006 on the application
of EU data protection rules to internal whistleblowing schemes in the fields of accounting,
internal accounting controls, auditing matters, fight against bribery, banking and
financial crime. 00195/06/EN WP 117, adopted on 1 February 2006
308
309
[84]
organisation. This perception was continued in the following whistleblower
protection legislation. Therefore, the individual that had to be protected, was
the whistleblower. The Europeans, lead by the French, have taken a different
stand and strive for protection of the (possible falsely) accused individuals
under the whistleblowing practice. Often mentioned reasons for this different
attitude, are the high value Europeans put on privacy and collective traumas
of reporting in passed regimes, as pointed out earlier. Anonymity remains a
controversial topic within the field of whistleblowing protection. Another
argument against anonymity is that it is false protection because usually it is
a matter of putting one and two together to find out who was the reporter 311.
At that stage, the whistleblower has nothing to fall back on. Supporters of this
argument suggest using confidentiality 312 instead of anonymity. On the
symposium on whistleblowing on the Cobus de Swardt 313, Managing Director
of Transparency International was quite clear on the subject: ‘as long as we do
not have adequate whistleblower protection in law, we cannot do without
anonymity’.
The different stand of the European data protection authorities have
caused practical difficulties for Europe based companies to comply to the
whistleblower provisions of SOX. Famous in the data protection vs.
whistleblowing, is the case of Mc Donald’s.
The CNIL 314, the French data
protection authority refused to approve Mc Donald’s to open a hotline with
anonymous reporting facility to its employees in France. New York Stock
Exchange listed companies, based in France, now found themselves in a
situation where they were either in conflict with SOX, or with the national
data protection legislation. To try to get to a solution, the CNIL set up a
recommendation 315 with a compromise; if companies follow the CNIL
procedure, they can install a whistleblowing hotline in France. Other national
data protection authorities in Western Europe are starting to respond to the
new development. Most follow the guidelines 316 which were set out by the
European data protection authority Group Article 29. The group was
311 Lissenberg, E. (2008) Klokkenluiders en verklikkers. Afscheidsrede uitgesproken op
15 februari 2008 te Amsterdam. 4
312 Confidentiality is the situation whereby only designated person or office has
knowledge of the whistleblowers identity and holds responsibility for protecting the
whistleblowers identity
313 Swardt, C. de (2009) Promoting a culture of integrity in fighting corruption. At:
Symposium Klokkenluiden, Tranparency International. The Hague 21 April
314 Commission nationale de l’informatique et des libertés. See: www.cnil.fr
315 CNIL (2005) Guideline document adopted by the “Commission nationale de
l’informatique et des libertés” (CNIL) on 10 November 2005 for the implementation of
whistleblowing systems in compliance with the French Data Protection Act of 6
January 1978, as amended in August 2004, relating to information technology, data
filing systems and liberties. Paris, 10 November 2005
316 EU Article Data Protection Working Party (2006) Opinion 1/2006 on the application
of EU data protection rules to internal whistleblowing schemes in the fields of accounting,
internal accounting controls, auditing matters, fight against bribery, banking and
financial crime. 00195/06/EN WP 117, adopted on 1 February 2006
[85]
established in the EU directive 95/46
317,
to oversee compliance to the
directive. One country that seems to have taken it a step further than the EU
guidelines on whistleblowing schemes, is Spain. In a recommendation in
2007 318 the AEPD 319 declared (anonymous) whistleblowing practices as not
allowed in Spain 320. Whether and how this ruling by the AEPD is enforced,
remains unknown. Illustrative of the novelty of the whistleblower hotlines in
Europe, is that the governance code in Spain, in conflict with the position of
the AEPD, does recommend anonymous reporting as fraud deterrence tool. In
other countries, like the Netherlands, companies that want to install a
whistleblower hotline, should notify the CBP 321, the Dutch data protection
authority. The absence of clear guidance on these issues makes clear the
subject is relatively new in Europe.
Not only the data protection authorities take on a sceptical stand
against the corporate whistleblowing practices, sometimes also the works
councils do too. The works councils in certain countries have to be consulted
are asked for their approval 322 when deciding on implementing an internal
whistleblowing procedure. The works councils can use their legal power to act
out their resistance. Sometimes the resistance is based on the same source as
described above. However, for a large part, the corporate culture, the
relationship between the companies management and the works council and
the role of the works council in the complaint handling, will determine the
position of the works council.
More general, whistleblowing as business self-regulating tool, has lead
to the suspicion of cover- up, which falls under the same category of general
suspicions of business self- regulation. The self- regulation of business has
and will continued to be looked at with suspicion; it is asking for cover-up.
“For example, banks find themselves both as potential participators in money
laundering as required to detect and deter it 323” Regardless of the wide range
of initiatives of the corporate world to demonstrate their commitment to social
responsible behaviour, the business still is not trusted 324. Nevertheless, when
317 EU (1995) Directive 95/46/ EC of the European Parliament and of the Council of 24
October 1995 On the Protection of Individuals with regard to the processing of personal
data and on the free movement of such data. In: Official Journal of European
Communities. NO L 281/31 , article 29
318 AEPD (2007) Creación de sistemas de denuncias internas en las empresas
(mecanismos de “whistleblowing”) Available at: www.agpd.es (25 January 2009)
319 Agencia Espagnola de Protección de Datos. See: www.agpd.es
320 It is described that it is not allowed to process anonymous complaints
321 College bescherming persoonsgegevens. See: www.cbpweb.nl
322 In Germany, the Works Council has codetermination rights. See the famous Wal
Mart case: The 5th Division of the Wuppertal Labour Court, dated 15 June 2005
Arbeitsgericht Wuppertal, Court Order, dated June 15, 2005, 5 BV 10/05.
323 Nelken, D. (2002) White-Collar Crime. In: (Maguire, M., R. Morgan & R. Reiner eds.)
The Oxford Handbook of Criminology. Third edition, (Oxford University Press: Oxford),
pp.844- 877
324 Zadek, S. (2007) The Civil Corporation. Revised with a new introductory essay
[86]
it comes to whistleblowing, we do see scholars who seem to agree upon a use
of the internal whistleblower system can be a very effective tool, though under
certain preconditions 325. Society in whole does not necessarily gain from too
much transparency; there should be a good and honest balance. Furthermore,
if that internal regulation fails, it should be complimented by external and
safe means for whistleblowing 326. It does not have to be the one or the other.
CONCLUDING REMARKS
Through corporate governance European countries became acquainted with a
new approach to whistleblowing. We can say that it is not so much the legal
requirements through which European companies get pushed into the
direction of facilitating whistleblowing. Moreover it is social pressure which
comes from the encouragement by key players. The pressure also comes from
competition, also based in the US, and their level of good business practices.
Corporations cannot stay behind anymore when it comes to demonstrating
levels of corporate social responsibility to the consumer as important
stakeholder 327. Furthermore, since the current economic crisis accelerated the
call for more transparency 328, we can reasonably expect a rise of corporate
whistleblowing programs.
Going back to the previous chapters, we can observe that the corporate
world is taking on the battle against silence when it comes to the
whistleblowing situation. Where we see that authorities remain hesitant
towards projecting the principles of the transparency commitment onto the
whistleblowing situation, the corporate world is taking on the challenge. They
are using those tools, like offering anonymity, which address the unique
complexities of the whistleblowing situation and they are organising,
encouraging and extracting voice. Furthermore, they aim at creating rules
around internal reporting. Promoting the whistleblowing procedure as a tool to
speak up about breaches of the business code and/ or principles, gives a
moral content to speaking up as transparency tool. In the next chapter I will
elucidate on how we should frame the reports coming in through these
Integrity Hotlines. Key to this, is whether we can still frame these reports as
acts of whistleblowing and these reporters as whistleblowers.
(Sterling: Earthscan), 8
21- 31
327 Hond. F. & f. de Bakker & P. Neergaard (2007) Managing Corporate Social
Responsibility in Action. (Ashgate: Hampshire & Burlington)
328 Marc Pieth, quoted in: Starink, L. (2009) Vals spel zonder grenzen. In: NRC
Handelsblad, Zaterdag & Cetera, Saterday 21 February
[87]
Textbox 1: An Example of an Internal Whistleblower Program
In the company brochure Integrity & Compliance at Novartis, the multinational
pharmaceutical, under section ‘enforcing integrity standards we read: “We have
processes in place to manage potential conflicts of interest which may arise, and to
review grants and promotional activities to ensure that these are in line with
Novartis standards and applicable laws […] Adherence to our standards of integrity
is crucial for Novartis. To ensure that these standards are enforced, we support an
open culture in which associates can speak up and challenge peers and
supervisors.”
Novartis head quarters is based in Basel, Switzerland. Novartis has established an
impressive corporate citizenship program. Novartis is listed to the New York Stock
Exchange and hence has to comply to Sarbanes Oxley, including the
whistleblower provisions.
In 2005 Novartis established the Business Practices Office (BPO). The BPO
manages complaints of actual or suspected cases of misconduct. The BPO
facilitates a central intake of all complaints which come in either directly or though
their global network of free phone lines which operates ‘in 70 countries, providing
associates with the possibility of reporting allegations in 51 languages in
confidence, without fear of retaliation.’ The BPO is responsible for the coordination
and investigation of the follow up of all integrity complaints.
The CEO and Chairman of Novartis, Daniel Vasella openly and actively supports
the integrity and compliance program and the BPO process as enforcement tool.
The Novartis annual report of 2006 mentions that the BPO received 651 reports of
alleged violations of the internal rules. 363 were fully investigated and 228 were
fully of partially substantiated. As a result 130 associates were discontinued and
another 125 sanctions were taken. The annual report of 2007 the total of received
reports rose to 906 of which 436 were fully investigated. As a result 168 contracts
of associates were ‘discontinued’ and 92 official warnings were issued.
In 2008 the total amount of received complaints which became investigations was
884. So far, as a result of the investigations, 162 employee contracts were
discontinued, 66 warning letters were issued and appropriate training was
undertaken to improve behavior.
Sources:
Novartis (2007) Integrity & Compliance at Novartis.
Novartis (2006) Annual Report 2006.
All Available at: http://www.novartis.com/about-novartis/corporatecitizenship/index.shtml
[88]
Figure 3: Example of awareness poster of internal whistleblowing program
5
The
‘Whistleblowing’
Shift
A few days before the Olympic Summer Games of 2008 started, thirty thousand
taxi-drivers in the Chinese city of Guangzhou were equipped with a whistle.
Blowing that whistle would alert the police about suspicious incidents 329. We
could call this ‘actual whistleblowing’. The term whistleblowing derives from the
old- school policemen who blew their whistle to stop the thief. Later on, “blowing
the whistle” became a metaphor for individuals who warned the public about
potential societal harm.
We all have a pretty good idea about whistleblowing; two or three
names of whistleblowers have probably just crossed your mind. Whistleblowing
in the traditional meaning of the word is an act of an individual who speaks out
about doubtful practices, hidden from the public eye. Going back to the Chinese
taxi drivers, the act of a single taxi driver blowing his whistle to alert the crowd
for danger, would fall under this traditional sense of whistleblowing. Maybe the
Mu, E. (2008) “Blow your whistle when you see a terrorist”. In: Information Times,
Guangzhou, August 6 2008. Available at:
http://www.danwei.org/front_page_of_the_day/insert_image_hereinformation_t.php
(31-11-2008)
329
Chapter 5 The “Whistleblowing” Shift
taxi driver would become a hero; his face on every front page. Or maybe he
would lose his job because he was naïve enough to speak up about the bad
quality of the breaks.
When we look at the example of the Chinese taxi drivers, something else
attracts the attention. The Chinese taxi drivers did not just happen to have a
whistle, rather the whistles were provided to them by the authorities who saw
whistleblowing as part of their ‘Safe Olympic Monitor’. Next to handing out the
whistles, the taxi drivers were also encouraged to call a 110 emergency
number. In addition, the taxi drivers were spurred by promising financial
rewards. In other words: whistleblowing was organised, structured and
encouraged.
The transparency quest and the societal dismissal of silence has led to a
renewed attention on whistleblowing. We have seen influential international
organisations promoting whistleblowing as fraud deterrence tool and we are
seeing discussions on improvements in national protective legislation all
around the world. Within this framework it appears that the term
‘whistleblowing’ has gotten a stronger emphasis on organising, encouraging
and promoting the act of speaking up. In the US protective legislation was
from the start based on the idea that good protective or compensation
measures would spur more witnesses to speak up. In Europe we can observe
a strong hesitation against these type of measures, at least in national law.
Therefore, we can say that in Europe, citizens got acquainted with these new
spurring tendencies through corporate governance codes. It followed the line
of the more broader transparency quest and the emerging role of the reporting
witness. As underscored in the first chapters, the whistleblowing situation is
different from the ‘ordinary’ bystander situation; in the whistleblowing
situation witnesses have even stronger (and understandable) incentives not to
speak up. Subsequently, the corporate whistleblowing schemes have to work
with incentives and protective measures – like offering anonymity – in order to
extract voice and information.
We all know stories of persons who blew the whistle; stories about
individuals who spoke up about serious violations of society’s trust. Most
probably, it did not end up very well with the whistleblower you are thinking
of right now. Certainly, this depends largely on where you are from; the
region’s dynamics make up for its leading whistleblower narratives. For
example, a reader from the Netherlands would, most probably, now be
visualising the almost cliché image of the Dutch whistleblower who went from
villa to trailer. At the same time, a person from the US might be more
receptive to a more heroic perspective on the whistleblower. Regardless of
these regional distinctions in whistleblower notions, I am arguing that a
universal set of whistleblower notions exists, which prevails in our popular
[94]
Chapter 5
A ‘Whistleblowing’ Shift
thinking about whistleblowing. I would like to classify this as the ‘conventional
blowing the whistle framework’.
In line with the societal developments described earlier, you can notice
that within whistleblowing literature scholars have started to attach
whistleblowing to words like ‘mechanism’ and ‘tool’. Vandekerckhove 330
portrays
whistleblowing
as
a
transparency
tool,
Dworkin
depicts
whistleblowing an integral part of SOX’ “enforcement mechanism” 331, and
elsewhere he marked it as a ‘governance tool’ 332. Gobert and Punch 333 talk
about whistleblowing as ‘a mechanism for achieving accountability in public
and private organizations’. Others describe whistleblowing as ‘one of the key
components of ethics/ compliance programs’ 334. This terminology also prevails
under influential civil society players in the universal struggle against
corruption and in the corporate compliance scene. It is this type of
terminology which shows that the term ‘whistleblowing’ has started to shift.
Or at least, that a second set of connotations came to exist next to the record
of the conventional. With this development the meaning of the term
whistleblowing shifted. It moved from being constructed by the conventional
framework to being constructed by the new whistleblowing framework. The
new framework is an utterance of the societal quest for transparency whereby
citizens and other societal actors are asked to participate in creating a secure
world. The shift that I am arguing in this chapter: the shift from
whistleblowing as an incidental act towards whistleblowing as an encouraged
pattern.
Please note, that I am not saying that the new framework was replaced
by the new one. We have just seen the new framework, and its characteristics,
came to exist next to the conventional one. The two frameworks which I am
arguing in my thesis, both originated in the US where the two were
intertwined from the start. In the US whistleblowing legislation had, very
much, a spurring character. In the US, whistleblowing protection was one way
of reinforcing the cultural value of protecting the individual and even more
important: the freedom of speech. In the Netherlands, it seems more the other
way around: whistleblower protection law is needed in order to change the
330 Vandekerckhove, W. & M. Commers (2004) Whistleblowing as a Transparency Tool.
CEVI Working Paper 200409-2, available at:
http://www.mb.utwente.nl/oohr/news/activities/eben_platform/vandekerckhove_com
mers_whistle.pdf (25 January 2009)
No. 8 June 2007, pp. 1757- 1779, 1757
332 Dworkin, T. (2002) Whistleblowing, MNC’s and Peace. William Davidson Institute
Working Paper 437 Available at:
http://www.wdi.umich.edu/files/Publications/WorkingPapers/wp437.pdf (25 January
2009)
pp. 25- 54, 26
[95]
attitudes towards the whistleblowers. In the Netherlands, like in other
countries, we can say that the level and the set-up of national whistleblowing
protection legislation is part of the conventional framework. Both frameworks
are flying over from the US separately from one another. This makes the
Netherlands, and probably most of continental Europe, a very suitable place
to identify the two frameworks.
Please note that the corporate whistleblowing schemes does not
necessarily equal the new whistleblowing framework. The emergence of the
corporate whistleblowing schemes is one utterance of the new whistleblowing
framework. However, in Europe the nuances of the new framework have only
appeared through corporate governance. Therefore, the new whistleblowing
framework is carried by corporate governance. So please note that the
characteristic of the internal audience is not necessarily part of new
whistleblowing. It can, in contrary to the conventional framework. Regardless
of the key role of corporate governance in the creation of the new
whistleblowing framework, we can observe a broader slow movement towards
a more spurring attitude towards whistleblowing. Debate on whistleblowing
legislation
is
being
held,
encouraged
by
international
players
like
Transparency International.
5.2
‘WHISTLEBLOWING’: NEW SHADES OF MEANING
Before discussing the main features of conventional blowing the whistle
framework, I want to briefly get into the sources that underlie the framework.
You will see that the features, which I am about to discuss, are a logical
consequence of these sources. Key to the conventional blowing the whistle
framework, is that it is media driven. Whistleblowers and whistleblowing is a
very popular media theme. But, as with any news, only those whistleblowing
cases which are ‘newsworthy’ get coverage. News content is being filtered by
reporters based on what, they expect, makes a good story. Core elements of
what makes a good story are ‘immediacy, dramatization, personalization,
titillation and novelty’. Whistleblowing cases vary in the extent that they are
composed of these elements. Most whistleblowing cases cannot compete with
the few more dramatic whistleblower cases, let alone with the whole bucket of
dramatic news items. It is clear that only those whistleblower cases enter the
media which contain high levels of dramatization and personalization.
Furthermore, good whistleblower cases give room for negotiations of angles,
something which rises the level of newsworthiness. In the Netherlands we
have a great example for the media to put her teeth in: Ad Bos. This man lost
everything and for a long time had to live in a decayed trailer on the meadow.
The media took every chance they got to shoot the pictures of this awful sight.
Next to the factual media, the fiction media also plays a big role in
[96]
Chapter 5
shaping our notions on whistleblowing. Especially in the US, whistleblowing is
a beloved Hollywood theme and is part of the popular culture. Often
mentioned examples are The Insider and CRASH. Obviously, these fiction
media select their content even more on the presence of appealing elements,
like heroism or grand evil organisations. The Hollywood movies also enter
Europe and other continents. Nevertheless, the fiction industry demonstrates
divergence between the US and other parts of the world. In the Netherlands,
there is not one fictional account of a Dutch whistleblower which emphasises
characteristics like heroism or bravery. Due to the lack of anything better,
many scholars have been forced to choose the case study or life history as
research methodology. This poses problems for the validity of the research
material
when
they
are
used
to
generalise
about
whistleblowing
characteristics. The case studies were never selected ‘at random’. The
whistleblowing cases that we come to know, we do not come to know without
reason; I just described that the content already holds unique features that
make them attention-grabbing. Most cases of whistleblowing will never
become publicly known; these cases are just not interesting enough for the
media to exploit and these cases can hence not be included in comparative
studies on the act of whistleblowing. It would be wrong to label those unique
features as characteristics of every act of whistleblowing.
The term whistleblowing got new emphasises due to the current ideas about
transparency and early deterrence. With this the term whistleblowing actually
got a new set of characteristics. Whistleblowing can still be used in the
traditional sense of the word, but you will also come across the term used in
the new way. The four emphasis shifts that I will discuss below are:

From actor focussed towards structure focussed

From reactive towards proactive

From external audience towards internal

Towards a new modus operandi
From Actor Focussed Towards Structure Focussed
The first characteristic of the conventional blowing the whistle framework is
preoccupation with rare and incidental occurrences. Incredible stories and
movie exist about whistleblower heroes. In the academic literature the same
legendary accounts set the stage. This is not so strange, looking at the sources
of the conventional conceptions on whistleblowing. Glazer’s 335 work ‘Ten
Whistleblowers’ is a good example. Glazer discusses some of the most famous
cases like Frank Serpico at the New York Police department, and less famous
Glazer, M.P. (1983) Ten Whistleblowers. What They Did and How They Fared. In: (D.
Ermann & R. Lundman 2001 eds.) Corporate and Governmental Deviance. Problems of
Organizational Behavior in Contemporary Society (Oxford University Press: New York),
pp. 229- 249
335
[97]
whistleblower cases like Joseph Rose at the Associated Milk Producers
Incorporated. Another well known whistleblower story is that of Jeffrey
Wigand against the tobacco industry, portrayed in the movie ‘The Insider’ 336.
And let’s not forget the case of the Space Shuttle Challenger and the dispute
over the o- rings 337, a case analysed in detail by Diane Vaughan 338. One more
recently discussed whistleblower narrative is that of Sherron Watkins, who
spoke up about the happenings at Enron and who was named Time person of
the year for doing so.
Much attention has gone out to the person the whistleblower. Many
scholars have wondered whether there is something like a whistleblower
personality.
Scholars
characteristics 339:
have
tried
to
find
unique
whistleblower
are they highly moral, are they loyal or disloyal, are they
male or female, are they altruistic or egoistic, what is their place in
organisational hierarchy, and many more. Miethe 340 performed a meta
analysis to find out whether there is something like a profile of the
whistleblower.
He
searched
for
the
prevalence
of
significant
social,
psychological, and demographic factors, but he concluded that “there is little
evidence of a whistleblowing personality 341”. Near and Miceli 342, authorities on
whistleblowing, have also concluded that there is no such thing as a
whistleblower personality.
An outcome of the case study based research, is the focus on the
modus operandi of the whistleblower. Scholars have been interested in finding
out under which circumstances a witness decides to blow the whistle. One
element which frequently comes forward is the presence of a ‘conflict of
loyalties’ at the potential whistleblower. Glazer 343 for one, discusses ten
whistleblower cases and demonstrates the state of conflicting loyalties where
almost every potential whistleblower finds him of herself in. Another much
Johnson, R. (2003) Whistleblowing: When it Works and Why. (Rienner Publishers:
Boulder & London), chapter 1
337 Ibid., 31- 40
338 Vaughan, D. (2001) The Challenger Space Shuttle Disaster. Conventional Wisdom
and a Revisionist Account. In: (D. Ermann & R. Lundman 2001 eds.) Corporate and
Governmental Deviance. Problems of Organizational Behavior in Contemporary Society
(Oxford University Press: New York), pp. 306- 333
339 Dozier, J. & M. Miceli (1985) Potential Predictors of Whistleblowing: A Prosocial
Behavior Perspective In: The Academy of Management Review, vol. 10, No. 4. (Oct.), pp.
823- 836
340 Miethe, T. (1999) Whistleblowing at Work. Tough Choices in Exposure Fraud, Waste
and Abuse on the Job (Westview Press: Oxford), Chapter 4 The Prevalence and the
Profile of Whistleblowers.
341 Ibid., 67
342 Near, P. & M. Miceli (1996) Whistle- Blowing: Myth an Reality. In: Journal of
Management. Vol 22, No. 3, pp. 507- 526
343 Glazer M.P. (1983) Ten Whistleblowers. What They Did and How They Fared. In: M.
Ermann & R. Lundmann (eds.) Corporate and Governmental Deviance. Problems of
Organizational Behavior in Contemporary Society. (Oxford Un. Press: New York &
Oxford: 2002), pp. 229- 250
336
[98]
Chapter 5
loved theme in whistleblower (academic and popular) literature has been the
destroyed whistleblower lives; the ‘fate of the whistleblower 344’. Being Dutch
(and hence down to earth), I sometimes have trouble reading the numerous
Hollywood like accounts in academic literature; it has a numbing effect. My
prejudice is not just; the truth is, that the accounts of whistleblowers
destroyed lives are indeed shocking and the fixation is in that respect more
than legit since it is aimed at forcing more or better working whistleblower
protection. The shape in which this end is being pursued should not have to
matter. Probably the American psychoanalyst Fred Alford 345 who spent years
among former whistleblowers (through whistleblowing support groups), is the
best in his kind when he writes:
“[…] I think we will not understand what is happening in our
society until we listen to the tears, the screams, the pain, and the
horror of those who have crossed a boundary they did not even
know exists” 346.
Within
the
new
whistleblowing
framework
which
resulted
from
the
transparency quest and within that the revolution of the witness, the focus
has moved away from the person the whistleblower. Here, the focus is on the
organisation and policies which will lead to the best results. The research
within the new whistleblowing framework is survey based and focuses much
more structure and effectiveness. We see these type of studies in the academic
world, Miceli and Near and Trevino are some examples. Central to these
studies are the linkages between organisational culture and whistleblowing.
Also surveys from the big four accountancy firms on this topic are leading. We
also see the start of benchmarking reports by hotline providers or non profit
organisations. Furthermore, due to the rise of internal procedures and means
of anonymous reporting, the whistleblower does not even have enter the
media. Blowing the whistle within the conventional framework is about the
unstructured, incidental method by the whistleblower. He/she will have to
search for the best way to blow the whistle and still survive. This could be an
anonymous note to the CEO, a flash movie on a YouTube 347 or a ‘shotgun 348’
approach. The new framework envisions that these methods are no longer
necessary. Mechanism are put in place in order to structure whistleblowing.
We are seeing the rise of whistleblower procedures and hotlines which can be
2003, pp. 119- 130
345 Fred Alford, C. (2001) Whistleblowers. Broken Lives and Organisational Lives and
Organisational Power (Cornell Un. Press: Ithaca & London)
346 Ibid., ix
347 See, for example, the whistleblower at Lockheed Martin:
http://www.youtube.com/watch?v=iwoLhk6u7Lo (4 February 2009)
348 “reporting of misconduct to a wide array of internal and external agencies at the
same time” See: Miethe, T. (1999) Whistleblowing at Work. Tough Choices in Exposing
Fraud, Waste, and Abuse on the Job (Westview Press: Oxford), 219
[99]
used both as reporting tool or as helpline.
From Reactive Towards Proactive
Closely related to the previously mentioned point, is the tendency of the
conventional blowing the whistle framework to focus on the aftermath of the
act of whistleblowing. This is not strange seeing the main source of
information: those cases that have already reached the media. These cases
already are in an advanced stage, interesting enough to be broadcasted. We
see attention for the whistleblower who suffers retaliation and for the shocking
consequences of the organisation’s misbehaviour. Within this framework,
whistleblower protection legislation is set up just in case a whistleblower
would be retaliated against. A whistleblower is the exception and not the rule.
Whistleblower protection legislation is a safety net in case a whistleblower
falls; it has a reactive character.
The main element of the new whistleblowing is its organising
character. In the general introduction I gave the example of the Chinese taxi
drivers who were encouraged to report on any suspicion incident. Meetings
were organised and means for giving alert were distributed by authorities. Key
to the new whistleblowing character is pattern and repetition; whistleblowing
is getting organised with the purpose of being institutionalised. Within the
new framework; whistleblowing in proactively encouraged, and research
focuses on structure, in order to proactively enlarge effectiveness of
whistleblowing. I want to underscore to proactive sides of the new
whistleblowing framework. The first is the proactive nature of putting the
whistleblowing mechanism into action in order to detect fraud and other
forms of wrongdoing. The mechanism recognized as a tool to prevent
escalation of starting corruption. From a risk management perspective,
whistleblowing is viewed as an effective proactive tool. Further, it could be
argued that having a low barrier reporting mechanism enlarges the potential
perpetrator’s risk of being caught, hence deterrent effect. Following the
precautionary principle, an effective whistleblowing procedure can be qualified
as ‘early warners and listeners 349’.
The second proactive element of the whistleblowing framework, is
towards the potential whistleblower. Whistleblower legislation models might
be proactive in the sense that they aim at encouraging the potential
whistleblower.
Nevertheless,
from
the
whistleblower’s
perception,
whistleblower protective legislation can hardly be framed as something
proactive. Whistleblower legislation is characterised by an extensive aftermath
legal struggle for the whistleblower. So, for the whistleblower, whistleblower
De Vries, G. (2008) Presentatie WRR-rapport Onzekere Veiligheid. Available at:
http://www.wrr.nl/content.jsp?objectid=4581 (25 January 2009)
349
[100]
Chapter 5
protection law is about reactive protection 350. Even worse: the reactive
protection is only partial and unfortunately, never guaranteed. From this
perspective, we could say that offering an anonymous channel for blowing the
whistle, as is prescribed in SOX, is a way of proactively protecting the
whistleblower. In theory, there is simple no better way of protecting the
witness from retaliation than not knowing his/her identity.
From External Audience towards Internal
Within
the
conventional
blowing
the
whistle
framework,
the
act
of
whistleblowing is done at an institution external to the organisation where the
wrongdoing took place. This could be to the police, to politicians, a
supervisory authorities or to the media. As said before, it is mostly the media
cases which get well known. Scholars 351 within the conventional framework
have also embraced the fact that an external audience is an essential element
of whistleblowing. The most commonly used definition 352 in US literature, the
Miceli/Near definition, does not make this prerequisite. Nevertheless, popular
culture and the power of media stories make the external audience 353 a key
notion of blowing the whistle. As a result blowing the whistle appeared to be
the struggle of the individual against the big bad organisation. This notion is
constructed in two ways. Firstly, it is the organisation that has committed
horrible wrongdoing. Secondly, the organisation carries out unimaginable
forms of retaliation against the whistleblower. The conventional framework of
blowing the whistle, holds a notion of ‘corporate irresponsibility’ 354, in contrast
to the whistleblower’s voluntary responsibility to bring justice. As a result of
this black- white thinking, whistleblowing in popular thinking, only occurs
when an corrupt organisation is the opponent. An incident whereby an
employee would blow the whistle on committed wrongdoing of a group of coworkers and wherein the organisation helps the whistleblower, would not fit
this picture. The conventional whistleblower holds the idea of the ‘last man
standing’ in the struggle against the corrupt organisation. Since the entire
2003, pp. 119- 130
Publishers: (Boulder & London), 3; Vinten seems to be saying the same when he talks
about ‘unauthorised disclosure’. - Lissenberg, E. (2008) Klokkenluiders en verklikkers.
Afscheidsrede uitgesproken op 15 februari 2008 te Amsterdam.
352 Micelli, M. & P. Near (1985)
353 One thing that should not be confused with the internal-external split, is whether
the whistleblower case became publicly known. A case which is being reported
internally could end up receiving a lot of public attention. Also, the other way around:
a case which was reported externally could not. This depends on the public eye and to
what extent the media attention is drawn to this specific case. It speaks to itself that
normally most external cases are also public cases and internal cases are not. After all,
the main reason for offering internal whistleblowing facilities is to avoid negative media
attention.
354 Mitchell, L. (2001) Corporate Irresponsibility. America’s Newest Export. (Yale
University Press: New Haven & London)
[101]
organisation is corrupt the whistleblowers only chance is to turn to an
external institution. This perspective is different in the new whistleblowing
framework.
The new whistleblower framework is inextricable bound up with
corporate
governance
and
the
raise
of
effective
internal
controls.
A
whistleblowing procedure and adequate supportive mechanism are internal,
which means that the whistleblower complaint does not exit the organisation.
Here, we talk about ‘internal whistleblowers’. Please note that I am not saying
that the internal whistleblower is new in today’s organisations; the internal
whistleblower has always been around using internal reporting channels (like
reporting to line management) to speak up. The difference now is that this
internal reporting has now become internally regulated. This was necessary,
because also internal reporters did not always face happy endings. Most
victims of organisational retaliation remain invisible to the public eye. With
the so called whistleblowing procedures, the internal reporter can now fall
back on his rights and duties when filing a complaint. With these new internal
procedures and whistleblower mechanisms, whistleblowing within in the new
framework is not necessarily a matter of the little (good) individual against the
big (evil) company. Whistleblowing has moved from an act against the
organisation towards an act on behalf of the organisation.
Towards a New Modus Operandi
As a result of the encouraging aspect of whistleblowing, we have seen the rise
and the expansion of accommodating instruments. We have already seen the
rise of the so- called ‘hotlines’ whereby employees can dial toll free numbers
24/7 to report their issues. The most common hotline model is the call centre
solution; live operators answer the whistleblowers call and follow a script in
order to get the report details. The call centre solution is especially popular in
the US. Other solutions like internet based services and voice response
dialogue systems are also available. Which solution is best, will depend largely
on the regional and corporate culture, the organisational structure, and the
multilingual level.
Offering anonymity as part of the whistleblowing procedure is a
controversial element of the new whistleblower framework. Especially in
Europe, this element is causing distress and resistance, as already addressed
in chapter 4. Offering anonymity comes from the proven fact 355 that observers
of wrongdoings seldom are willing to stick their neck out; the career incentives
Supported by several studies. e.g. Miceli, M. & J. Near (1984) The Relationship
among Beliefs, Organizational Position, and Whistleblowing Status: A Discriminant
Analysis. In: The Academy of Management Journal, Vol. 27, No. 4. (Dec., 1984), pp.
687- 705, More recently confirmed in The Netherlands: Ministry of Internal Affairs
(2008) Evaluatie klokkenluidersregelingen publieke sector. April 2008.
355
[102]
Chapter 5
against revealing are strong 356. Especially the case when they have no selfinterest in doing the report; with anonymity you at least give them full
protection.
One step further than organising safe whistleblowing, is encouraging
whistleblowing. This aspect definitely seems to be an element of the new
whistleblowing framework. Within the new whistleblowing framework there
exists an extensive search for new ways of spurring whistleblowing.
Dworkin 357 explains that there are two models for encouraging whistleblowing.
The first is the protective whistleblower model, which aims at encouraging
whistleblowing by offering protection from retaliation. The second model also
gives incentives, whereby the whistleblower is offered significant rewards in
order to spur whistleblowing. Dyck et all 358 have labelled this as the ’market
approach’ which does not ‘ex ante designate people in charge of detecting
fraud’, but ‘provides a reward system for people who bring fraud to light’. I
would not want to call this approach the next step after offering anonymity in
encouraging whistleblowing, since it is essentially different in the sense that
the whistleblower has to give his/her identity in order to gain. But this
remains a point of dispute; some are against rewards because there are
dangerous “Trojan Horses 359’, other say whistleblowing protection is a farce 360
without rewards. Another argument to support a reward system is for its
symbolic message of approval of whistleblowing 361. I will not get into this
discussion. At least we can conclude that offering incentives and anonymity
are both part of the new framework because its purpose it to encourage. To
see which one of the two approached is more ‘spurring’, would ask for further
research.
5.2 BLOWING THE WHISTLE, WHISTLEBLOWING, WHISTLEBLOWER
In the previous paragraph I have addressed certain new shades which have
come to surround the term ‘whistleblowing’. Some will notice that several of
the changes go against the profound sense about what whistleblowing or a
whistleblower is. For example, when we take a look at the part of the audience
– an inside or outside audience – we could ask whether a whistleblower is not
Dyck. A. , A. More & L. Zingales (2008) Who Blows the Whistle on Corporate Fraud?,
30 Available at:
faculty.chicagogsb.edu/luigi.zingales/research/PSpapers/whistle.pdf (25 January
2009)
No. 8 June 2007, pp. 1757- 1779, 1768
358 Ibid., 4
No. 8 June 2007, pp. 1757- 1779, 1774
To Do it Right.(John Wiley & Sons: Hoboken), 280
356
[103]
somebody who always warns the society, somebody who shouts it from the
roof tops. How can somebody making an alert internally be called a
whistleblower? Confusion about the terminology has arisen. I will address that
issue here below. In the end I will argue that it does not matter which
terminology we choose. The most important thing is that we categorise in such
a way that we can learn about the rationale behind speaking up, about the
rationale behind acting out in the whistleblower situation: the environment in
which open and hidden interdependencies exist between the witness and the
perpetrator.
5.2.1 A Second Meaning of “Whistleblowing”
I want to start with the difference between ‘blowing the whistle’ and
‘whistleblowing’. I discussed the entrance of a new whistleblowing framework.
When we talk about ‘whistleblowing’ within that framework, we are not
referring to the act itself. And because traditional definitions are exactly about
the whistleblower act, these are not fitting for this new whistleblowing. Take
for example the broadly used definition of the whistleblower icons Miceli and
Near: “The disclosure by organization members (former or current) of illegal,
immoral, or illegitimate practices under the control of their employers, to
persons or organizations that may be able to effect action 362”. This definition
clearly is about the incidental act itself, complaint to the conventional
framework 363. For me, this is would be more a definition of ‘blowing the
whistle’, not of ‘whistleblowing’. The definition of whistleblowing should be less
about the act, and more about the organisation of means to encourage that
act. I am not particular interested in coming up with a definition myself; I am
sure there are specialist who can do a much better job. But I am willing to
give it a try. Whistleblowing 364 in the new sense of the term, is: organising
protective and/or encouraging means in order to spur and structure repetitive
disclosure of wrongdoing by organisational members. This description of the
term whistleblowing follows the line of the transparency quest whereby
witnesses of all kind are spurred to voice. Whistleblowing is a tool, a
mechanism, an instrument, a device or a method; all set in place in order to
extract
voice
and
information.
This
second
meaning
of
the
word
Near, P. & M. Miceli (1985) Organizational dissidence: The case of whistle -blowing.
In: Journal of Business Ethics, 4, pp. 1-6, 6
363 Please note that I am not placing the scholars Miceli and Near in the category of the
conventional framework. Firstly, I am not claiming any strict borders between the two
frameworks. Secondly, if there are scholars that would be typical for one framework, it
would certainly not be Miceli and Near; Their work on whistleblowing is very broad and
covers both frameworks extensively. I am nearly saying that their definition is better
applicable to the conventional framework.
364 For the Dutch reader, please note that I am not suggesting a similar construction
for Dutch terminology. ‘Klokkenluiden’ is too much contained with the negative
connotations part of the conventional whistleblower framework. We should consider
using also using ‘whistleblowing’.
362
[104]
Chapter 5
whistleblowing has come to exist next to the traditional meaning, referring to
the incidental act of speaking up, something what I would prefer calling
‘blowing the whistle’. Obviously, I understand that it would be impossible
trying to claim and bring about a universal use of the terms ‘blowing the
whistle’ and ‘whistleblowing’; that would just become too complicated. It is
important, however, to realise that this second description of whistleblowing
exists and expands according to societal developments towards transparency
perfection.
5.2.2 Still a “Whistleblower”
Can we still consider the persons that speak up under the new framework
‘whistleblowers’? For example, many would argue that person who internally
speak up about matters, cannot be considered whistleblowers. I want to get
into that point in brief on the basis of the famous definition of Miceli and
Near 365: “The disclosure by organization members (former or current) of illegal,
immoral, or illegitimate practices under the control of their employers, to persons
or organizations that may be able to effect action.” The definition is universally
used and no serious attempts have been made to develop another one. It is
rather broad with the advantage that, to my opinion, most of the new
whistleblowing framework whistleblowers can fit in. The first element of the
definition is the person speaking up. Like Near & Miceli, most scholars agree
that the whistleblower is a member or former member of the group the
whistleblower speaks up about 366. At least, you do not come across many
scholars who explicitly oppose this view. This element has not changed under
the new whistleblowing; organisational members are still the potential
whistleblowers. Nevertheless, we have seen a broadening of the potential
whistleblowers within the new framework; sometimes also non-organisational
members, but other stakeholders, are given to possibility to speak up. For
example, in certain internal whistleblowing procedures, suppliers can access
similar instruments to report wrongdoing as employees.
The second element is about what is spoken up. Most scholars do not
differentiate much about what the nature should be of the whistleblower’s
disclosure. Many remain relatively vague and they just seem to be wanting to
make the point that it should be severe practices, like “illegal, immoral, or
illegitimate practices” 367 or “possible or actual nontrivial wrongdoing“ 368. This
element has also stayed unchanged, except maybe for the part ‘under the
control of their employers’. In the internal whistleblowing procedures we often
Near, P. & M. Miceli (1985) Organizational dissidence: The case of whistle -blowing.
367 Near, P. & M. Miceli (1985) Organizational dissidence: The case of whistle -blowing.
Publishers: (Boulder & London)
365
[105]
see the ‘Code of Conduct’ given as scope for the procedure. Under the new
circumstances, reporting cases of racial and sexual discrimination or
bullying 369 at work are also considered whistleblowing 370. In that sense the
‘scope’ of the new framework has broadened. Also behaviour of lower
management is subject to these procedures. So, immoral behaviour which
might not be directly under the control of the employers can be reported. This
is also in line with the broader societal transparency quest.
The third element is much more interesting and has lead to
controversy, at least in the Netherlands: the element of the audience. I already
identified the external ear as basis feature of the conventional framework. This
notion was constructed by the convergence between practice, media and
research. Miceli and Near never dismissed internal whistleblowing; in their
definition they speak of ‘disclosure [in order to] effect change’ and they have
done early relevant (comparative) work 371 on both internal and external
disclosures. This is not so strange, coming from the US where the two
frameworks have been intertwined from the start. It is more in Europe were, in
order to talk about an act of whistleblowing, the audience should always be
the public or any other party external to the organisation. If we would uphold
this category of definitions of whistleblowing, internal whistleblowers would
fall outside of the scope of whistleblowing. In fact, the term ‘internal
whistleblower’ would be a contradictio in terminis and a preferred choice of
wording would be something like the ‘internal reporter 372’.
My main argument to dismiss the term whistleblowing for the new
framework, is that the whistleblower will always be associated with those
hero-fools who are stigmatised by one single act. Within the new framework,
internal whistleblowing and also instruments like anonymity, try to prevent
that public stigmatization 373. Many people would feel more comfortable
coming up with giving valuable information, if they would not have the idea
that they will become a whistleblower if they do. So, that would be a good
Sometimes also referred to as ‘mobbing’
Vinten, E. (1994) Whistleblowing Subversion or Corporate Citizenship? (St. Martins
Press: New York), 5
371 Miceli, M. & J. Near (1984) The Relationship among Beliefs, Organizational Position,
and Whistleblowing Status: A Discriminant Analysis. In: The Academy of Management
Journal, Vol. 27, No. 4. (Dec., 1984), pp. 687- 705
372 Lissenberg, E. (2008) Klokkenluiders en verklikkers. Afscheidsrede uitgesproken op
15 februari 2008 te Amsterdam.
373 It is not wise to label these internally reporting whistleblowers as whistleblowers in
the outer academic world. It seems like by promoting ‘whistleblowing’ is undermining
the whole encouraging essence of whistleblowing. This is due to the prevailing
connotations of whistleblowers in the conventional framework. This is especially the
case in the Netherlands were any associations with their whistleblowers, or in Dutch
klokkenluider, is all but appealing. No one wants to end up like any of the
klokkenluiders which are known in Dutch society. I expect this to be similar in other
European countries, and less in the US where the two frameworks have been ingrained
in US law, practice and culture. Future comparative qualitative research should
provide us with more answers on this subject.
369
370
[106]
Chapter 5
argument to dismiss the term whistleblowing for these new reporting
initiatives. However, my main objection against straying away from the term
whistleblowing, is that with that it appears that a certain level of moral value
disappears. Even though we hate the whistleblower, we do somehow, have the
idea that in a certain way he does something morally correct. This is to say:
sometimes his disloyal act is being publically justified. With an eye to the outcasting of whistleblower at the same time, this is a strange paradox
surrounding the whistleblower, it is as if we are saying: ‘I morally approve of
the whistleblower, but not in my backyard’. In the current public debate in the
Netherlands, I often notice that internal whistleblowing schemes are
supposedly not for whistleblowers, but rather for snitches and traitors. I
believe that it is incorrect to sweep the moral element of whistleblowing aside,
just because the whistleblower does not use the public arena to speak up. For
me, every whistleblower, internal or external, basically is a snitch. It is society
that decides afterwards whether the act of snitching was justified. On other
words; society adds moral content to the broken secrecy. The verdict will
depend largely on the severity of the disclosed wrongdoing. It has absolutely
nothing to do with which audience, internal or external, the whistleblower
addressed to. The whistleblower can still be someone who reports wrongdoing
inside of the organisation. For me the vital element of the whistleblower is that
he is part of the whistleblower situation and that he steps out of that
environment in order to speak up and bring about change.
I stated that, for several reasons, a whistleblower in the new
framework could still be indicated as a whistleblower. If we alter the Miceli/
Near definition slightly we would have one for whistleblowers instead of for
whistleblowing: organization members (former or current) who disclosure illegal,
immoral, or illegitimate practices (under the control of their employers), to
persons or organizations that may be able to effect action 374. There is
something missing in the definition. A fundamental characteristic of many of
the conventional definitions is the combination between the elements of
‘organisational member’ and the ‘external audience’. This implies a strict
separation
between
the
perpetrator
environment 375
and
the
listeners
environment. This means that the whistleblower is someone who has ties with
Definition of whistleblower, based on the Miceli Near definition.
The perpetrator environment does not necessarily consist of perpetrators only. More
often it a large environment of other witnesses upholding silence. I do not believe a
whistleblower is someone ‘at the wrong place at the wrong time’ (Near, P & M. Miceli
1996 Whistle-blowing: Myth and Reality. In: Journal of Management, Vol. 22. No. 3,
507- 527, 515), rather I believe that the whistleblower is just one out of many of the
bystanders, as Cohen also underscores (Cohen, S. 2001 States of Denial, 258). The
whistleblower is special because he/she breaks with the ‘culture of silence’ (Beamish,
T. 2000 Accumulating Trouble: Complex Organization, a Culture of Silence, and a
Secret Spill. In: Social Problems, Vol. 47, No. 4 (Nov.), pp. 473- 498). The analogy used
by Sherron Watkins, “The Emperor’s New Clothes” is an appropriate one (Watkins, S.
(2004) The Emperor’s new clothes: my Enron Story. In: (Calland. R. & G. Dehn eds.)
Whistleblowing Around the World. Law, Culture and Practice (ODAC/ PCaW: London),
pp. 61- 72)
374
375
[107]
the perpetrator environment and decides to speak up outside of that
environment. These ties can be based on friendship, history, loyalty, a shared
secret or power. No matter what these ties are, the essence of a whistleblower
remains this divergence between the perpetrator environment he/she is
connected to and the audience. It appears that this vital characteristic of
whistleblowing has disappeared when we talk about internal whistleblowing;
the perpetrators environment and the audience have both become the
organisation. Does this make internal whistleblower ‘reporters 376’ rather than
‘whistleblowers’? I believe this is not the case. The same divergence of
perpetrator environment an audience can exist with internal reporting.
Employees can speak up about wrongdoing of inner circle in their work
environment; their peers. Also, employees can speak up at head quarters
(transcending geography if necessary) about the wrongdoing of one business
unit. To conclude: I believe that at the heart of whistleblowing lies at the
divergence between audience and perpetrator environment, the later to which
the whistleblower is bonded. This divergence could very well exist within one
organisation. So a person speaking up using an internal Integrity Hotline
could still very well be a true ”whistleblower”.
Why do these terms and categories matter? We could say that terms do
not matter that much; what is in a name? However, there are two reasons why
we should stand still with the terms and categorizing of whistleblowing.
Firstly, to add nuance to the public debate. “Whistleblowing” has now become
a term which covers many subcategories and many different modus operandi
of the whistleblower. Public debate about whistleblowing tends to go back and
forth between the different meanings; that is a waste if we want to get
somewhere. Whistleblowers get judged in the same way. For example when he
is judged to be of disloyal character. We cannot simply make a statement
about loyalty without mentioning the object of loyalty: is it society, the
organization or your peers? And what happens with the balance of these
loyalties once you are able to report inside the company? These nuances
should be taken into considerations.
Secondly, for the purpose of knowledge building. Whistleblowing does
remain one of the key instruments how wrongdoing comes to light and how
damage and disaster can be prevented. We also know that many witnesses in
the whistleblowing situation rather choose the silent path. A choice which is
very well understandable and which is caused by the interdependencies which
exist between the witness and the perpetrator environment. The whistleblower
chooses to step outside the perpetrator environment to find another platform
376 Lissenberg, E. (2008) Klokkenluiders en Verklikkers. Afscheidsrede. Universiteit van
Amsterdam. 15 Februari 2008, p. 3 Available at:
http://www.jur.uva.nl/onderwijs/home.cfm/3BC9CE3C-1321-B0BE68E3F477E40CEBEA
[108]
Chapter 5
to raise voice. With this the whistleblower breaks the social code of secrecy. It
is this step which is essential to the whistleblowers experience. At the same
time it is this step which shapes the highest threshold for witnesses to speak
up. The psychological and sociological motivations behind that step can tell us
much about how we can create more witnesses taking that step. Which would
imply more early warners. So, if we really want to get behind the psychology of
the whistleblower, we should not overlook cases which might not ‘walk like a
whistleblower’ but who in essence are.
Therefore, I would like to argue that it would be a great waste leaving
the internal whistleblowing, or categorising ‘internal reporting’ as something
different. Both internal and external whistleblowers should be part of the
same category for research purposes 377. Comparing the internal and external
whistleblowers could give us valuable new insights in the modus operandi of
the individual who wants to act out when he/she faces unethical behaviour.
Miceli 378 uses the same argument as a rationale for her broad definition of
whistleblowing. Further, looking at is pure practically; internal whistleblowing
mechanism pose opportunities for data collection which we could never have
had without these structured ways of taking in whistleblowing messages. The
traditional way of data collection about whistleblowing is hardly structured or
at random; external whistleblower cases catch the public (and hence the
academic) eye for specific reasons.
Still, the question remains: who is a whistleblower? I think I made my point
that the divergence of perpetrator environment and the audience is the
principle element of whistleblowing. The essential part of the element is that
the person speaking up is tied in many hidden and open forms with the
perpetrator environment. Hence, loyalty questions always come into play. So,
this means that an ordinary bystander witness who is an outsider to the
perpetrator environment can never be considered a whistleblower. There are
elements which I believe should also have to be met in order to speak of
whistleblowing. The two I want to address: the nature and gravity of the
wrongdoing and the duration of time.

The nature of the wrongdoing. Would somebody reporting on the poor
or abundance print behavior of his/her peers be considered a
whistleblower? Obviously, not. Where the border should be exactly
drawn is hard to say. At least we have to say that the potential damage
For another purpose: setting up an effective internal whistleblower procedure with
which employees feel safe to report on an incident, you could question whether you
should encourage them to become a (internal) whistleblower. In a lot of countries a
‘whistleblower’ has negative connotations which hardly work invitingly; avoidance of
the term in the communication is desirable.
378 Miceli, M. et all (1999) Can Laws Protect Whistle-Blowers? Results of a Naturally
Occurring Field Experiment. In: Work and Occupation, Vol. 26 No. 1, February 1999
129-151
377
[109]
and victimization caused by the perpetrator’s wrongdoing has to
surpass the whistleblowing situation. This also remains a broad scope.
I believe that every case will be judged by hindsight whether it was
whistleblowing. At least, we should realize that the rationale behind
whistleblowing does not only happen when the disclosed is so big that
is reaches the media.

The duration of time. I do not think that a person who witnesses an
incident of wrongdoing by his peers and immediately and almost
instinctively shouts for help can be considered a whistleblower. True,
there was a divergence perpetrator environment and audience, but
that would not be enough to consider somebody a whistleblower. A
whistleblower situation exist 1) once the witness is aware of the
interdependencies and 2) once the first signs of a culture of silence or
the open secret have become a fact. In other words, a whistleblower
comes forward in a place where others have knowledge of the
wrongdoing, but chose to remain silent.
5.2.3 The Users of the Integrity Hotline
The key feature of any whistleblower situation is the divergence between the
perpetrator environment and the witness. You could say that all employees
within an organisation have ties of independencies with the perpetrator
environment, so in that sense they are all witnesses in a whistleblower
situation. Nevertheless, having seen the messages coming through my work
(see introduction), I would say that also messages come in where these
interdependencies are almost dismissible 379. When seeing the complaints
coming in through the Integrity Hotline 380 you can divide the usage into three
categories:

Whistleblower witnesses; the internal reporting lines are a speak up
mean for employees who are stuck in a whistleblower situation. The
internal reporting line truly is a ‘whistleblowing hotline’.

Bystander witnesses; the internal reporting lines are a mean for
bystander
witnesses
–
those
whose
interdependencies
to
the
perpetrator are dismissible – to speak up. This follows the line of all
other reporting initiatives we see in broader society, like crimestoppers.
Obviously, this is not always easy to judge just by reading the ‘whistleblower’
message.
380 My sample composes of the messages which I see coming in through the SpeakUp
system, at the company I work for People Intouch.
379
[110]
Chapter 5

Direct victims; victims of (sexual) harassment can use the internal
reporting lines when they are a victim themselves; it is a victim
helpline.
So, a user of an Integrity Hotline is not necessarily a whistleblower, but he
very well could be. The way someone decides to break a with the code of
secrecy can never be the criterion to decide whether somebody is a
whistleblower. It simply has nothing to do with it. Even more so, the way
someone chooses to speak up can never be the criterion to decide whether
someone is a snitch. I said it before: because breaking a code of silence is
what makes a whistleblower, any whistleblower is in essence a snitch. Society
judges in hindsight whether the act is morally legitimised.
CONCLUDING REMARKS
Whistleblowing as a regulated instrument has slowly captured a strong
position. The focus is not so much on the individual but more on the costs
and benefits of the instrument and further on how to improve its effect. This
notion of whistleblowing is tied up with present-day poplar frames, like the
fight against corruption, (enterprise) risk management, early warning systems,
entity level controls and self regulation.
[111]
Conclusion
The transparency-whistleblower paradox shaped the basis for this thesis. I
wanted to find out what it is that makes us feel uncomfortable around the
whistleblower, when at the same time, we are striving at eliminating all
varieties of hidden danger. How come we are not embracing the whistleblower,
while at the same time condemning silence? This fascination led to the first
query which took up a central place in this work: what is the origin of the
‘whistleblower’ paradox? I started with describing this transparency quest, as
I call it, in chapter 1. I used the impressive works of sociologists and
criminologists to examine the causes of the continuing quest for transparency.
On the one hand we have seen a bottom-up call for transparency;
transparency as a human right for the emancipated citizen. Freedom of
information leads knowledge which is needed to participate, voice and
empower. At the same time, the authorities, the ones held responsible for
creating security – and hence for creating a safe transparent environment –
throw the ball back at the demanding masses. Citizens are asked to provide
the basis of the envisioned transparent society; that is their job to participate
Conclusion
in creating a safer society. There is a realistic acceptance of the fact that there
are hidden risks, risk which the authorities are impossible to control. We need
eyes close to the fire. Citizens are becoming the early warning mechanism of
post-modern society; and they are accepting this role, as the success of the
Crimestoppers initiative demonstrates. Under these circumstances we could
reasonably expect whistleblowing approval and activity to grow. However, that
seems easier said than done.
Chapter 2 examined the complexity of breaking the silence. The path
towards breaking the silence as a form of bystander paralyse, is filled with
human considerations which create rational restraints preventing the
bystander from acting out. This is very normal human behaviour, which each
and every one of us can probably discover while reflecting on simple
occurrences during the day. Taking the easy road as a mean for selfpreservation is intrinsic to human nature. For witnesses who find themselves
in the whistleblowing environment, it becomes even more complicated. The
whistleblowing situation differs from most other bystander situation in the
sense that the (potential) whistleblower is connected to the perpetrator(s)
through ties of interdependencies. On the one hand this intensifies the
rational choice to remain silent; after all the ties the witness has with the
perpetrators make the witness more prone to retaliation. On the other hand,
we see that the (potential) whistleblower is dealing with internal conflict about
breaking secrecy. In his work on secrecy in 1906 the classical sociologist
George Simmel gives the answer to what causes the internal conflict. Secrecy
is a very fundamental social form, which shapes the basis of all sorts of
human relations. This is a code which is ingrained in human nature and
aborting it is not an easy thing to do. Unfortunately, this is not just. Simmel
clearly puts forward that secrecy is merely a social technique, which says
nothing about the moral content. Keeping a secret can serve a good cause, but
also a bad. Nevertheless, it looks like the technique of secrecy is being
confused for a virtue by the society in a whole. No one really likes the one
breaking the secrecy code.
Chapter 3 also showed that regardless of the new quest for
transparency, whistleblowing protection is not self-evident. Many countries,
among others the Netherlands, do not have an adequate whistleblowing
legislation in place. Authorities are approving acts and policies to spur
reporting of citizens in all sorts of forms, but they keep distant from endorsing
protection for those citizens who actually do what they ask. Furthermore, it
seems that in the countries which do have whistleblowing protection
legislation, the protection does not say anything about the how the former
whistleblowing is being treated afterwards. This was the example I started
with: the former whistleblower with a villa, a swimming pool and a red sports
car, but no one to share it with. The dismissal of breaking the code of secrecy
[116]
Conclusion
runs deep and truly is like Miethe says: “If whistleblowing were more socially
acceptable, financial and other incentives for disclosing misconduct, as well as
hot lines and the passage of legislation to encourage whistleblowing, would be
unnecessary 381”.
The key to the transparency-whistleblower paradox already shows us the
possible limits to the transparency quest. How can we expect the right
information to come up when strong human considerations might be blocking
the process? This leads me to the second query I started with: What are the
weaknesses of the transparency quest? Transparency is often positioned as
being the opposite of secrecy. In a way you could say that transparency is the
counter-technique to secrecy. George Simmel made it clear that secrecy is
merely a social technique, which should not be confused with a moral value.
Secrecy as a tool can be used to serve the good as well as the bad. It is up to
society to provide the moral content; the moral rules around secrecy. We
should wonder if the same thing does not apply to transparency. Within the
new transparency quest, transparency is often presented as being a moral
value,
but
is
transparency
also
not
merely
a
(counter-)technique?
Transparency is a form aimed at eliminating the bad utterances of secrecy. If
we want to prevent over-exposure, we should consider adding clear moral
content to the transparency principle. Especially now that we are seeing the
transparency principle increasingly becoming more applicable to the private
domain, we should provide the potential users with the rules surrounding it.
Then, the next question arises:
who decides upon the moral content?
Especially within this globalised world with contradicting interests. We already
saw the example of the whistleblowing protection in the US. Certain secrets
are sacred and the interest involved outweigh the benefits of transparency.
Who decides which secrets are, and more important, which are not allowed?
In his work The Muted Conscience, Bird also showed the importance of
shaping the correct moral sight. As well as for the potential reporters, as for
the recipients of the reports, the ‘listeners’. Without attention on those two
aspects, and merely focussing on spurring reporting, we can hardly expect to
get out of the transparency driven reporting revolution what we envisioned. In
that respect, society can learn something from the best practices of corporate
internal whistleblowing schemes. Those are already placed within a clear
moral framework: the business code. The moral content of the technique is
being further reinforced by adequate responses to the complaints. Focussing
merely on the voicing side, will not be sufficient when you really want to tackle
the problem of undesired silence. Reporting is, after all, not the aim, but
merely a tool. Therefore the right consciousness should be created and the
381
[117]
Conclusion
response should be in line with the moral conscious. This approach can only
take place when there is – as the title of his book already says – a moral
conscious. One unambiguous moral conscious to which the norms around
speaking up can be aligned. This can become problematic in a broader
indefinite society.
How can we make sure that the right signals get picked up, seems to
be the question which we should be asking ourselves. Seeing how complex
patterns of silence can be, together with history proving its force time and
time again, it is only fair to question the ability of the reporting tendencies to
create the desired transparency. Furthermore, seeing the attitude towards
whistleblowers shows that there are limits to individuals willingness to
embrace transparency. As said before: it is good that transparency rules in the
world, but not in my backyard. This leads to the question whether we will get
what we want from all these points of reporting. The relative willingness to
provide transparency, combined with the creation of the manageable fear,
brings up the question what will happen with all these points of reporting.
Especially the wood of uncontrolled points of reporting that we find on the
web. At some point we will have the evaluate whether we are actually getting
from these institutions for the purpose they were brought to life for. Also, is
this reporting revolution not just adding to the falsely portrayed culture of
control?
For me, the most frightening consequence of risk and precautionary
society, is its numbing effect on our instinct. The way we have become
obsessed with beating disasters, trouble or discomfort to the fact has lead to
an overexposure of supposedly preventative measurements. It is the reaction
Garland talks about, when the authorities say they are in control. The effect of
these measurements is that it creates the appearance of safety. A very realistic
world vision is there is no perfect world; risks cannot be fully controlled. On a
conference of the precautionary principle, organised by the OMV in 2008,
Helsloot said exactly the same, using the example of the Amsterdam subway
system. If anything were to happen in one of the tunnels, for example a fire,
people would die, for sure. “Why are we not just being open about this fact,
from the start? Maybe people would be able to handle the fact and would be
less surprised when disaster would strike 382.”
So risks cannot be fully controlled, especially because we do not know
exactly what the risks are. A negative effect of saying we can, is that we are no
longer expecting damage; our instinct is losing grounds. This process has
already been started when risk society indeed reduced damage of calculated
382
Helsloot, I. (2008) Symbolische voorzorg in het fysiek veiligheidsbeleid en de
crisisbeheersing. Reading during the Congress Zorgen om de voorzorgcultuur. By the
OMV, Rotterdam, 7 November 2008
[118]
Conclusion
risk through insurgencies. But now, the precautionary thinking is firing up
this paralysing process. I would like to use the example of something which
happened almost two years ago during a festival in Utrecht. About twenty
persons were standing and dancing on staircase which led to one of the
canals. The staircase was obviously old and fragile; It was attached to the wall
with iron pins. Movement was supposedly noticed while the celebrating
persons were moving to the music of the live band. Then, the iron pins gave in
and the staircase was de- attached from the wall; tragedy followed. Why was
there not one person on those stairs who sensed that this simple could not
end well? Maybe someone did, but choose not to speak up because the
argument would not be heard. I do not believe for one second that this could
have happened in a pre- WWII Dutch village. Those people would have listened
to their instinct and followed their common sense. The actual people on the
staircase in Utrecht were numbed by society’s illusionary protective arms.
With this example I am not suggesting there no more fear in today’s society,
there is just no more intuitive fear; the kind of fear that can help you at the
right moments. In today’s society there is plenty of fear. It seems more that
the loss of intuitive fear as protecting mechanism has lead to need for the
creating of a more rational, artificial kind of fear. It is this artificial kind of fear
which become the notorious feelings of insecurity 383; this is the fear which can
be managed 384. This management leads again to the same type of illusionary
protective measurements, which again lead to the further decay in intuitive
fear. The endless cycle is complete.
I find the decay of intuitive fear difficult compatible with the rise of
reporting initiatives. It sounds a lot like the paradox which Garland has
described in his Culture of Control. Garland has convincingly pointed at a
schizophrenic response of the authorities; on the one hand the authorities are
in strict denial about their failure in delivering physical and economic
security. This leads to “A show of punitive force against individuals […] to
repress any acknowledgement of the state’s inability to control crime to
acceptable levels 385”. On the other hand we see the call for the assistance
other actors, like the citizens. New reporting initiatives are an example of the
call for help. The crime stoppers program is a huge success, also the Dutch
variant has impressive user numbers. How can we view this reporting
behaviour next to the paralyse of society, which I just described? How can we
claim security and, at the same time ask the citizens to act and speak out
about all the incidents of insecurity?
This sometimes appears to be an impossible task. We are living in a
time where transparency is a common good; mechanisms are put in place in
This is not the place to get into elaboration, but feelings is not the same as instinct!
Bunt, H. van de & R. van Swaaningen (2004) Van criminaliteitsbestrijding naar
angstmanagement. In: (E. Muller ed.) Veiligheid. (Deventer: Kluwer), pp. 661- 673
383
384
[119]
Conclusion
order to create openness of information. The idea is that when you can see
everything, danger and insecurity do not get a chance to grow. Or, even better,
when you can see everything, why would anyone think about behaving wrong
in the first place? The transparency quest, accompanied by a reporting
revolution, is going full speed ahead. At the same time we keep getting proof of
the continuing of persistent patterns of silence. Also the reluctance for
protecting or welcoming the whistleblower, can fairly make us wonder whether
our intrinsic human conditions are up for bringing the transparency quest to
a happy conclusion; the transparency rule appears to apply to the neighbours,
but not to one self. Considering these preconditions, combined with the
appearance of media made fear at the expense of our intuitive fear, how can
we assure that: we are looking out for the true dangers and insecurity, the
real dangers are being detected and that the right actors are doing the
detecting? One solution would be creating rules and regulations, even controls
on the reporting institutions and behaviour.
The third query of this work had was: To what extent has the transparency
quest altered the meaning of ‘whistleblowing’? I already mentioned in the
introduction, that my own observations and discussions have led me to
believe that a new set of connotations have come to exist next to a somewhat
traditional idea we all have when thinking about the whistleblowing: the
media-made hero or fool. In chapter 5 I argued the shift from whistleblowing
as an incidental act towards whistleblowing as an encouraged pattern. My
purpose of – sometimes bluntly
- portraying the characteristics of the two
whistleblowing frameworks, was to try to and create room for a more profound
discussion about true nature of the whistleblower. Without being distracted
by appearances we have come to know through media. The real questions
should be: what is the element which is the true to the whistleblower’s story?
What is the element which makes him/her unique? What is the element we
should focus on if we really want to learn more about the road to speaking
up? These three questions all have the same answer: the element is the
breaking of a code of secrecy. The whistleblowing situation is unique, because
of the divergence between the perpetrator environment and the audience.
Regardless of the modus operandi or the motivations of the whistleblower, this
is what makes whistleblowing. It is overcoming this thresholds of both facing
repercussions and having to deal with conflict of loyalties, which is unique to
the whistleblowing. To me that is the dynamic is key to whistleblowing, and
also the most interesting aspect to focus studies on in order to try and figure
out the origins of long term networks of silence.
The instrument or road the witness in the whistleblower circumstances
chooses is not what makes a whistleblower. His/her step and decision to find
[120]
Conclusion
an outside audience and by doing that breaks a code of secrecy, does. Also,
the chosen instrument or road he/she chooses does not make one a hero or
snitch. Since breaking a code of secrecy is the essential elements of
whistleblowing, a whistleblower is in first instance always a snitch. It is the
community who decides afterwards whether the act was legitimised.
Therefore, I stated that employees using a corporate internal integrity line,
could still very well be a whistleblower. There are however, also ‘ordinary’
reporters, who might not be breaking a code of secrecy, but who did witness
an incident and want to report it. In short: the kind of reporters society and its
reporting revolutions is aiming in general.
In the Netherlands and other parts of Europe, it were the corporate
whistleblowing schemes that took on the challenge or extracting voice form
the whistleblower environment. Nowadays it is more the peer pressure which
is making more companies to open an whistleblower hotline. It is becoming
the ‘state of the art 386’. Many officers responsible for the SpeakUp system, a
hotline but different 387, that I am in contact with, show incredible spirit to put
the system in place for the good: creating a safe reporting mean for employees
who would otherwise keep walking around with a burden. In contrary, the
authorities show hesitation and even dismissal when it comes to corporate
whistleblowing lines. Authorities do not seem to like these mechanism and
most of all they dismiss anonymity. I have never understood why this
resistance only appears when it comes to the corporate whistleblowing lines.
Crimestoppers is now a commonly accepted initiative in the Netherlands and
only expending its grounds. Crimestoppers also works with anonymity, as the
Dutch name Meld Misdaad Anoniem 388 clearly indicates. It is strange
accepting anonymity for such an initiative and not for an internal corporate
whistleblowing system. The resistance against corporate whistleblowing lines
is odd for several reasons. Firstly, because we are seeing a celebrating of other
societal reporting tendencies. Secondly, because no serious attempts are being
made to protect the whistleblower in national law 389. Thirdly, because the
corporate whistleblowing schemes are aiming at those witnesses who find
themselves within the whistleblowing environment. They are more prone to
repercussion of all kind and should therefore especially be given the
possibility to report anonymously. Fourthly, the internal whistleblower
schemes are organized with procedures and rules. The type of information
which comes in can be managed in order to limit the use of the lines
according to its purpose. This is something which we are seeing being done
within organisations. Organisations which set up an internal reporting system
The term one of our potential clients (Head Compliance of a MNC, Switzerland)
used, two days ago (5 June 2009)
387 Actually very different, but not relevant for this work.
388 Report Crime Anonymously
389 When there is talk about renewed whistleblower protection in the Netherlands, it
excludes employees of the private sector.
386
[121]
Conclusion
in order detect wrongdoing and bad apples as early as possible. This internal
set-up creates a certain control over the reporting mechanism – the internal
whistleblowing procedure – and over the reporting behaviour. When these
internal lines are correctly managed with the help of procedures about the
scope, responses and follow-up these internal reporting mechanisms pose far
less privacy and snitch damage as other generally accessible reporting points.
The remaining question is: how can we make sure that we pick up the right
signals within the transparency quest? Transparency can, just like secrecy, be
used for the good and for the bad. Also, just like secrecy can reach the
dangerous point if a secret society, whereby secrecy become the aim and not
the tool, the same thing could happen with transparency and reporting.
Transparency and reporting can never be the aim in itself. Therefore, the
further development of transparency tools, of which reporting tools are just
one, should go hand in hand with a continuous reflecting the purpose and
intent. If we want to prevent transparency to lead to over-exposure, as the
sunlight metaphor encompasses, we have to create rules and get them
between the ears. It speaks to itself that creating the rules and principles
surrounding a reporting tool is much easier to accomplish within an
organisation or company, than within society as a whole. Especially now that
transparency is becoming a global technique, it will be challenging finding the
right moral content.
[122]
Bibliography
AEPD
(2007) Creación de sistemas de denuncias internas en las
empresas (mecanismos de “whistleblowing”) Available at:
www.agpd.es (25 January 2009)
Algemene Rekenkamer
(2008) Signaleren van fraude. (11 March 2008)
Anand, V. B. Ashforth and M. Joshi.
(2005) Business as usual: The acceptance and perception of
corruption in organizations. In: Academy of Management
Executive, Vol. 19. No. 4, pp. 9- 23
Anonymous
(2000) A Woman in Berlin. Eight Weeks in a Conquered City. A
Diary (Picador: New York)
Beamish, T.
(2000) Accumulating Trouble: Complex Organization, a Culture
of Silence, and a Secret Spill. In: Social Problems, Vol. 47, No. 4
(Nov.) pp. 473- 498
Bibliography
Bird, F.B.
Birkinshaw, P.
Bovens, M.
(1996) The Muted Conscience. Moral Silence, and the Practice of
Ethics in Business. Quarum Books: Westport & London
(2006) Transparency as a Human Right. In: Hood, C. & D.
Heald (eds.) (2006) Transparency. The Key to Better
Governance? (Oxford: Oxford University Press), pp. 48- 57
(1990) Verantwoordelijkheid en organisatie Beschouwingen en
aansprakelijkheid, institutioneel burgerschap en ambtelijke
ongehoorzaamheid.(Tjeenk Willink: Zwolle)
Bunt, H. van de & R. van Swaaningen
(2004) Van criminaliteitsbestrijding naar angstmanagement. In:
(E. Muller ed.) Veiligheid. (Deventer: Kluwer)
Bunt, H. van de & R. van Swaaningen
(2004) Privatisering van veiligheid. In: (E. Muller ed.) Veiligheid.
(Deventer: Kluwer), 82- 96
Calland. R. & G. Dehn (eds.)
(2004) Whistleblowing Around the World. Law, Culture and
Practice (ODAC & PCaW: London)
Claus, S.
(2008) Alle beetjes hulp helpen…of niet? Interview with Linda
Polman. In: TROUW, de Verdieping, 8 november 2008
CNIL
(2005) Guideline document adopted by the “Commission
nationale de l’informatique et des libertés” (CNIL) on 10
November 2005 for the implementation of whistleblowing
systems in compliance with the French Data Protection Act of 6
January 1978, as amended in August 2004, relating to
information technology, data filing systems and liberties. Paris,
10 November 2005
Cohen, D. & L. Prusak
(2001) In Good Company (Harvard Business School Press:
Boston)
Cohen, S.
(2001) States of Denial. Knowing about Atrocities and Suffering
(Polity Press: Cambridge)
[124]
Bibliography
Commission of the European Communities
(2005) Recommendations on the role of non-executive or
supervisory directors of listed companies and on the committees
of the (supervisory) board, 15 February 2005, 2005/162/EC.
Available
at:
www.ec.europa.eu/internal_market/company/independence.
Devine, T.
(2004) Whistleblowing in the United States: The Gap Between
Vision and Lessons Learned. In: (Calland. R. & G. Dehn eds.)
Whistleblowing Around the World. Law, Culture and
Practice.(ODAC & PCaW: London), pp. 74- 100
Devine, T.
(2004) The USA: Government Accountability Project. In:
(Calland. R. & G. Dehn eds.) Whistleblowing Around the World.
Law, Culture and Practice.(ODAC & PCaW: London), pp. 158168
De Vries, G.
(2008) Presentatie WRR-rapport Onzekere Veiligheid. Available
at: http://www.wrr.nl/content.jsp?objectid=4581 (25 January
2009)
Dimba, M., L. Stober & B. Thomson
(2004) The South African Experience. In: (Calland. R. & G.
Dehn eds.)
Whistleblowing Around the World. Law, Culture
and Practice.(ODAC & PCaW: London), pp. 143- 152
Dozier, J. & M. Miceli
(1985) Potential Predictors of Whistleblowing: A Prosocial
Behavior Perspective In: The Academy of Management Review,
vol. 10, No. 4. (Oct.), pp. 823- 836
Draculić, S.
(1999) S. A Novel about the Balkans (Penguin Books: London)
Draculić, S.
(2004) They Would Never Hurt a Fly. War Criminals on Trial in
The Hague. Penguin Books: London)
Dyck. A. , A. More & L. Zingales
(2008) Who Blows the Whistle on Corporate Fraud? Available at:
faculty.chicagogsb.edu/luigi.zingales/research/PSpapers/whist
le.pdf (25 January 2009)
Duska, R.
(2007) Contemporary Reflections on Business Ethics (Dordrecht:
Springer)
[125]
Bibliography
Dworkin, T.
(2002) Whistleblowing, MNC’s and Peace. William Davidson
Institute
Working
Paper
437
Available
at:
http://www.wdi.umich.edu/files/Publications/WorkingPapers/
wp437.pdf (25 January 2009)
Dworkin, T.
(2007) SOX and Whistleblowing. In: Michigan Law Review. Vol.
105, No. 8 June 2007, pp. 1757- 1779
Ekstrand, L.
(2006) “GAO-06-320R Information on False Claims Act
Litigation” United States Government Accountability Office.
Available at: www.gao.org
Ericson, E.
(2007) Crime in an Unsecure World (Polity Press: Cambridge)
Ernst & Young
(2007) A Survey into Fraud Risk Mitigation in 13 Countries.
Ermann, M. & R. Lundman (eds.)
(2002) Corporate and Governmental Deviance. Problems of
Behavior in Contemporary Society. Sixth Edition (Oxford
University Press: Oxford)
EU
(1995) Directive 95/46/ EC of the European Parliament and of
the Council of 24 October 1995 On the Protection of Individuals
with regard to the processing of personal data and on the free
movement of such data. In: Official Journal of European
Communities. NO L 281/31
EU Article Data Protection Working Party
(2006) Opinion 1/2006 on the application of EU data protection
rules to internal whistleblowing schemes in the fields of
accounting, internal accounting controls, auditing matters, fight
against bribery, banking and financial crime. 00195/06/EN WP
117, adopted on 1 February 2006
FNV
(2000) Meldlijn klokkenluiders eindrapportage. (25 May 2000)
Fred Alford, C.
(2001) Whistleblowers. Broken Lives and Organisational Lives
and Organisational Power (Cornell Un. Press: Ithaca & London)
[126]
Bibliography
Garland, D.
(2001) The Culture of Control. Crime and Social Order in
Contemporary Society. (Oxford: Oxford Press)
Glazer, M.P.
(1983) Ten Whistleblowers. What They Did and How They
Fared. In: (D. Ermann & R. Lundman 2001 eds.) Corporate and
Governmental Deviance. Problems of Organizational Behavior in
Contemporary Society (Oxford University Press: New York), pp.
229- 249
Gobert, J. and M. Punch
(2000) Whistleblowers, the Public Interest, and the Public
Interest Disclosure Act 1998. In: The Modern Law Review. (Vol.
63, No 1. Jan. 2000, pp. 25-54)
Goodman M., C. Crump & S. Corris
(2007) “Disavowed: The Government’s Unchecked Retaliation
against National Security Whistleblowers”. (American Civil
Liberties Union: 2007)
Graaf, D. G.
(2007) Wat er over melden te melden valt. (Amsterdam: VU
Faculty of Social Sciences)
De Graaf, G.
(2009) “Klokkenluiden: Stand van Zaken”. Presentation during
the Symposium “Klokkenluiden”, Transparency International,
21 April, The Hague
Grover, S.
(1993) Lying, Deceit, and Subterfuge: A Model of Dishonesty in
the Workplace. In: Organizational Science, Vol. 4, No. 3 August,
pp. 478- 495
Hajer, M. & M. Schwartz
(1997) Ulrich Beck, De wereld als risicomaatschappij. Essays
over de ecologische crisis en de politiek van de vooruitgang
(Amsterdam: de Balie)
Heald, D.
(2006) Varieties of Transprency. In: Hood, C. & D. Heald (eds.)
(2006) Transparency. The Key to Better Governance? (Oxford:
Oxford University Press) pp. 25- 43
Heaphy, B.
(2007) Late Modernity and Social Change. Reconstructing Social
and Personal Life (Routledge: London)
[127]
Bibliography
Helsloot, I.
Hirschman, A.
(2008) Symbolische voorzorg in het fysiek veiligheidsbeleid en de
crisisbeheersing. Reading during the Congress Zorgen om de
voorzorgcultuur. By the OMV, Rotterdam, 7 November 2008
(1970) Exit, Voice and Loyalty. Responses to Decline in Firms,
Organizations and States (Harvard University Press: Cambridge)
Hond, F. & f. de Bakker & P. Neergaard
(2007) Managing Corporate Social Responsibility in Action.
(Ashgate: Hampshire & Burlington)
Hood, C. & D. Heald (eds.)
(2006) Transparency. The Key to Better Governance? (Oxford:
Oxford University Press)
Huls, N.
(1997) Recht in de risicomaatschappij. Rede uitgesproken bij de
aanvaarding van het ambt hoogleraar Recht en techniek (Delft
University Press: Delft)
Inglehart, R. & C. Welzel
(2005) Modernization, Cultural Change
(Cambridge University Press: Cambridge)
and
Democracy
Jackyll, R.
(1988) Moral Mazes. The World of Corporate Managers (Oxford
University Press: Oxford)
Johnson, C.
(2008) A Backlog of Cases Alleging Fraud. Whistleblower Suits
Languish at Justice. In: The Washington Post, July 2, 2008
available
at:
http://www.washingtonpost.com/wpdyn/content/article/2008/07/01 (30 November 2008)
Johnson, R.
(2002) Whistleblowing: When it Works and Why. Lynne Rienner
Publishers: (Boulder & London)
Kaptein, M.
(2008) The Living Code. Embedding Ethics Into the Corporate
DNA (Greenleaf Publishing: Aizlewood’s Mill)
Klein, N.
(2007) The Shock Doctrine. The Rise of Disaster Capitalism.
(Alfred A. Knopf: Canada)
KPMG (2007) Profile of a Fraudster. Survey 2007
[128]
Bibliography
Langevoort, D.
(2007) The Social Construction of Sarbanes- Oxley. In: Michigan
Law Review. Vol. 105, No. 8 June 2007, pp. 1817- 1855
Liebrand, W., D. Messick & H. Wilke (eds.)
(1992) Social Dilemmas. Theoretical Issues and Research
Findings. (Pergamon Press: Oxford)
Lissenberg, E.
Littell, J.
(2008)
Klokkenluiders
en
verklikkers.
Afscheidsrede
uitgesproken op 15 februari 2008 te Amsterdam. Available at:
http://www.jur.uva.nl/onderwijs/home.cfm/3BC9CE3C-1321B0BE-68E3F477E40CEBEA
(2006) De welwillenden (De Arbeiderspers: Amsterdam)
Loader, I. & R. Sparks
(2002) Contemporary Landscapes of Crime, Order and Control.
Governance, Risk and Globalization. In: (Maguire, M., R.
Morgan & R. Reiner eds.) The Oxford Handbook of Criminology.
Third edition, (Oxford University Press: Oxford), pp. 83- 111
Martin, B.
(2003) Illusions of whistleblower protection. In: UTS Law
Review, No. 5, 2003, pp. 119- 130
McAdams, T. (1977) Speaking Out in Corporate Community. In: The Academy
of Management Review, Vol. 2, No. 2. (April), pp. 196- 205
Miceli, M. & J. Near
(1984) The Relationship among Beliefs, Organizational Position,
and Whistleblowing Status: A Discriminant Analysis. In: The
Academy of Management Journal, Vol. 27, No. 4. (Dec., 1984)
Miceli, M., J. Near & C. Schwenk (1991) Who Blows the Whistle and Why? In:
Industrial and Labor Relations Review, Vol. 45, No. 1. (Oct.), pp.
113- 130
Miceli, M. et all (1999) Can Laws Protect Whistle-Blowers? Results of a
Naturally Occurring Field Experiment. In: Work and
Occupation, Vol. 26 No. 1, February 1999
Miethe, T.
(1999) Whistleblowing at Work. Tough Choices in Exposure
Fraud, Waste and Abuse on the Job (Westview Press: Oxford)
[129]
Bibliography
Ministry of Internal Affairs
(2008) Evaluatie klokkenluidersregelingen publieke sector. April
2008. Available at:
www.minbzk.nl/aspx/download.aspx?file=/contents/pages/92
243/bijlage2evaluatieklokkenluiderregelingen.pdf (10 January
2009)
Mitchell, L.
(2001) Corporate Irresponsibility. America’s Newest Export. (Yale
University Press: New Haven & London)
Mouthaan, E. (2007) The Audit Committee from a European Perspective. In:
European Company Law, February, Vol. 4., issue 1, pp. 10- 18
Mu, E.
(2008) “Blow your whistle when you see a terrorist”. In:
Information Times, Guangzhou, August 6 2008. Available at:
http://www.danwei.org/front_page_of_the_day/insert_image_h
ereinformation_t.php (31-11-2008)
Myers, A
(2004) Whistleblowing - The UK Experience. In: (Calland. R. &
G. Dehn eds.) Whistleblowing Around the World. Law, Culture
and Practice.(ODAC & PCaW: London), pp. 101- 118
Near, P. & M. Miceli
(1985) Organizational dissidence: The case of whistle-blowing.
In: Journal of Business Ethics, 4, pp. 1-6
Near, P. & M. Miceli
(1996) Whistleblowing: Myth and Reality. In: Journal of
Nelken, D.
(2002) White-Collar Crime. In: (Maguire, M., R. Morgan & R.
Reiner eds.) The Oxford Handbook of Criminology. Third edition,
(Oxford University Press: Oxford), pp.844- 877
Newton, L.
(2006) Permission to Steal. Revealing the Roots of Corporate
Scandal (Blackwell Publishing: Malden)
[130]
Bibliography
Oakley, E. & A. Myers
(2004) The UK: Public Concern at Work. In: (Calland. R. & G.
Dehn eds.) Whistleblowing Around the World. Law, Culture and
Practice.(ODAC & PCaW: London), pp. 169- 179, 169
Oest, van S.
(2008) Rechtsstaat zonder zelfkritisch en zelfreinigend
vermogen. In: Openbaar Bestuur. Nummer 3, March 2008, pp.
8-18
Oostveen, M. (2009) Sexting en Flagging. In: NRC weekblad 2-8 May, p.15
Parmerlee, M., J. Near & T. Jensen
(1982)
Correlates
of
Whistleblowers’
Perceptions
of
Organizational Retaliation. In: Administrative Science Quarterly,
Vol. 27, No.1.March, pp. 17- 34
Pieterman, R. (2008) De voorzorg cultuur. Streven naar veiligheid in een
wereld vol risico en onzekerheid. (Den Haag: Boom)
PriceWaterhouseCoopers
(2007) Economic crime: people, culture and controls. The 4th
biennial Global Economic Crime Survey
Punch, M.
(2000) Suite Violence: Why managers murder and corporations
kill. In: Crime, Law & Social Change 33, 243- 280
Randall, D.
(1987) Commitment and the Organization: The Organizational
Man Revisited. In: The Academy of Management Review, Vol.
12, No. 3. (Jul.) pp. 460 - 471
Randels, G.
(2001) Loyalty, Corporations and Community. In: Business
Ethics Quarterly. Vol. 11, No. 1 (Jan.), pp. 27- 39
Reiner, R.
(2002) Media Made Criminality. In: (Maguire, M., R. Morgan &
R. Reiner eds.) The Oxford Handbook of Criminology (Oxford:
Oxford University Press), pp. 376- 416
Security Executive Council
(2007) Corporate Governance and Compliance Hotline
Benchmarking Report. A report to Security Executive Council
Membership
SER
(2006) Evaluatie zelfregulering klokkenluidersprocedure. 15 May
[131]
Bibliography
Simmel, G.
(1906) The Sociology of Secrecy and of Secret Societies. In: The
American Journal of Sociology. Volume XI (4), pp. 441- 498
STAR
(2003) Verklaring inzake omgaan met vermoedens van
misstanden in ondernemingen. 24 juni 2003, Publicatienr. 6/03
(Stichting van de Arbeid)
Schwartz, P. & B. Gibb
(1999) When Good Companies Do Bad Things. Responsibility
and Risk in an Age of Globalization (John Wiley & Sons Inc.:
New York)
Swardt, C. de (2009) Promoting a culture of integrity in fighting corruption.
At: Symposium Klokkenluiden, Tranparency International. The
Hague 21 April
Tapscott, D. & D. Ticoll
(2003) The Naked Corporation. How the Age of Transparency
Will Revolutionize Business (Free Press: New York)
Transparency International & Social Accountability International
(2003) Business Principles for Countering Bribery. June 2003
Trevino, L. et all
(1999) Managing Ethics and Legal Compliance: What Works
and What Hurts. In: California Management Review. Winter
1999; 41
Trevino, L. & K. Nelson
(2007) Managing Business Ethics. Straight Talk About How To
Do it Right. (John Wiley & Sons: Hoboken)
Vandekerckhove, W. & M. Commers
(2004) Whistleblowing as a Transparency Tool. CEVI Working
Paper
200409-2,
available
at:
http://www.mb.utwente.nl/oohr/news/activities/eben_platfor
m/vandekerckhove_commers_whistle.pdf (25 January 2009)
[132]
Bibliography
Vandekerckhove., W.
(2007) Whistleblowing and Organisational Social Responsibility.
(Ashgate Press: Hamshire)
Vaughan, D.
(2001) The Challenger Space Shuttle Disaster. Conventional
Wisdom and a Revisionist Account. In: (D. Ermann & R.
Lundman 2001 eds.) Corporate and Governmental Deviance.
Problems of Organizational Behavior in Contemporary Society
(Oxford University Press: New York), pp. 306- 333
Vinten, E.
(1994) Whistleblowing Subversion or Corporate Citizenship? (St.
Martins Press: New York)
Watkins, S.
(2004) The Emperor’s new clothes: my Enron Story. In:
(Calland. R. & G. Dehn eds.) Whistleblowing Around the World.
Law, Culture and Practice (ODAC/ PCaW: London), pp. 61- 72
Weber, M.
(1922) Class, Status, Party. In: Economy and Society
Winfield, M.
(1994) Whistleblowers as corporate safety net. In: (E. Vinten
ed.) Whistleblowing Subversion or Corporate Citizenship? (St.
Martins Press: New York)
WRR
(2008) Onzekere veiligheid. Verantwoordelijkheden rond fysieke
veiligheid (Amsterdam University Press: Amsterdam)
Zadek, S.
(2007) The Civil Corporation. Revised with a new introductory
essay. (Sterling: Earthscan)
Zedner, L.
(2002) Victims. In: (Maguire, M., R. Morgan & R. Reiner eds.)
The Oxford Handbook of Criminology. Third edition (Oxford
University Press: Oxford), pp. 419- 455
[133]

Condemn Silence. Honour the Whistleblower? The Emergence of

Transcription

Documents pareils

EXAMEN COMMUN D`ENTREE EN PREMIERE ANNEE EPREUVE

Shari Schreiber`s therapists license cancelled

THE NATIONAL ARCHIVES SP 70/138, ff. 153

10.The Rosary: a symbolic place Rodenbach has - Bruges-la

THE ENGINEER AS PROMOTER - The Economic and Business

“It`s like Groundhog Day”: Remediation, Trauma, and

biblio-agreg-civi-br..

Potions, Poisons and "Inheritance Powders"