PROTECTION
OF WHISTLEBLOWERS

Legal instruments

Recommendation CM/Rec(2014)7
and explanatory memorandum

PROTECTION
OF WHISTLEBLOWERS

Recommendation CM/Rec(2014)7
adopted by the Committee of Ministersof the Council of Europe
on 30 April 2014
and explanatory memorandum

Council of Europe

French edition:
Protection des lanceurs d’alerte(Recommandation CM/Rec(2014)7
et exposé des motifs)
ISBN 978-92-871-7930-2
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Contents
RECOMMENDATION CM/REC(2014)7
Appendix to Recommendation CM/Rec(2014)7

EXPLANATORY MEMORANDUM
Introduction
Commentary
Appendix – The 29 principles

5
6

11
11
19
20

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Recommendation
CM/Rec(2014)7of the Committee of Ministers
to member Stateson the protectionof whistleblowers(Adopted by the Committee of Ministers on 30 April 2014,
at the 1198th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 15.b of the Statute of
the Council of Europe,
Recalling that the aim of the Council of Europe is to achieve a greater unity
between its members, inter alia, for the purpose of safeguarding and realising
the ideals and principles which are their common heritage;
Considering that promoting the adoption of common rules in legal matterscan contribute to the achievement of the aforementioned aim;

Reafrming that freedom of expression and the right to seek and receive
information are fundamental for the functioning of a genuine democracy;
Recognising that individuals who report or disclose information on threats orharm to the public interest (“whistleblowers”) can contribute to strengthening
transparency and democratic accountability;

Considering that appropriate treatment by employers and the public authorities of public interest disclosures will facilitate the taking of action to remedy
the exposed threats or harm;
Bearing in mind the Convention for the Protection of Human Rights andFundamental Freedoms (ETS No. 5) and the relevant case law of the European
Court of Human Rights, in particular in relation to Article 8 (respect for privatelife) and Article 10 (freedom of expression), as well as the Convention for theProtection of Individuals with regard to Automatic Processing of Personal
Data (ETS No. 108);► Page 5

Bearing in mind the Council of Europe’s Programme of Action Against
Corruption, the Council of Europe Criminal Law Convention on Corruption(ETS No. 173) and the Council of Europe Civil Law Convention on Corruption(ETS No. 174) and, in particular, respectively Articles 22 and 9 thereof, as wellas the work carried out by the Group of States against Corruption (GRECO);Taking note of Resolution 1729 (2010) of the Parliamentary Assembly in which
the Assembly invites member States to review their legislation concerning theprotection of whistleblowers bearing in mind a series of guiding principles;

Taking note of the compendium of best practices and guiding principles forlegislation on the protection of whistleblowers prepared by the OECD at therequest of the G20 Leaders at their Seoul Summit in November 2010;

Considering that there is a need to encourage the adoption of national frameworks in the member States for the protection of whistleblowers based on aset of common principles,
Recommends that member States have in place a normative, institutional andjudicial framework to protect individuals who, in the context of their workbased relationship, report or disclose information on threats or harm to the
public interest. To this end, the appendix to this recommendation sets out aseries of principles to guide member States when reviewing their nationallaws or when introducing legislation and regulations or making amendments
as may be necessary and appropriate in the context of their legal systems.

To the extent that employment relations are regulated by collective labour
agreements, member States may give efect to this recommendation and theprinciples contained in the appendix in the framework of such agreements.

Appendix to Recommendation CM/Rec(2014)7
Principles
Defnitions
For the purposes of this recommendation and its principles:a.
“whistleblower” means any person who reports or discloses information
on a threat or harm to the public interest in the context of their work-based
relationship, whether it be in the public or private sector;

Protection of whistleblowers ► Page 6

b.
“public interest report or disclosure” means the reporting or disclosingof information on acts and omissions that represent a threat or harm to the
public interest;c.
“report” means reporting, either internally within an organisation orenterprise, or to an outside authority;d.

“disclosure” means making information public.

I.

Material scope1.
The national normative, institutional and judicial framework, including,as appropriate, collective labour agreements, should be designed and developed to facilitate public interest reports and disclosures by establishing rules
to protect the rights and interests of whistleblowers.
2.
Whilst it is for member States to determine what lies in the public interest for the purposes of implementing these principles, member States should
explicitly specify the scope of the national framework, which should, at least,
include violations of law and human rights, as well as risks to public healthand safety and to the environment.
II.

Personal scope

3.
The personal scope of the national framework should cover all individuals working in either the public or private sectors, irrespective of the natureof their working relationship and whether they are paid or not.
4.
The national framework should also include individuals whose workbased relationship has ended and, possibly, where it is yet to begin in cases
where information concerning a threat or harm to the public interest has beenacquired during the recruitment process or other pre-contractual negotiation
stage.

5.
A special scheme or rules, including modifed rights and obligations,
may apply to information relating to national security, defence, intelligence,
public order or international relations of the State.
6.
These principles are without prejudice to the well-established and recognised rules for the protection of legal and other professional privilege.

Recommendation CM/Rec(2014)7 ► Page 7

III.

Normative framework

7.
The normative framework should refect a comprehensive and coherent
approach to facilitating public interest reporting and disclosures.
8.
Restrictions and exceptions to the rights and obligations of any person
in relation to public interest reports and disclosures should be no more thannecessary and, in any event, not be such as to defeat the objectives of theprinciples set out in this recommendation.
9.
Member States should ensure that there is in place an efective mechanism or mechanisms for acting on public interest reports and disclosures.
10. Any person who is prejudiced, whether directly or indirectly, by thereporting or disclosure of inaccurate or misleading information should retain
the protection and the remedies available to him or her under the rules ofgeneral law.

11. An employer should not be able to rely on a person’s legal or contractual
obligations in order to prevent that person from making a public interest
report or disclosure or to penalise him or her for having done so.

IV.

Channels for reporting and disclosures

12. The national framework should foster an environment that encourages
reporting or disclosure in an open manner. Individuals should feel safe to
freely raise public interest concerns.
13. Clear channels should be put in place for public interest reporting anddisclosures and recourse to them should be facilitated through appropriate
measures.
14.

The channels for reporting and disclosures comprise:–

reports within an organisation or enterprise (including to persons
designated to receive reports in confdence);–

reports to relevant public regulatory bodies, law enforcement agencies
and supervisory bodies;–

disclosures to the public, for example to a journalist or a member ofparliament.

The individual circumstances of each case will determine the most appropriate channel.

Protection of whistleblowers ► Page 8

15. Employers should be encouraged to put in place internal reporting
procedures.
16. Workers and their representatives should be consulted on proposals to
set up internal reporting procedures, if appropriate.
17. As a general rule, internal reporting and reporting to relevant public
regulatory bodies, law enforcement agencies and supervisory bodies should
be encouraged.

V.

Confdentiality

18. Whistleblowers should be entitled to have the confdentiality of theiridentity maintained, subject to fair trial guarantees.
VI.

Acting on reporting and disclosure

19. Public interest reports and disclosures by whistleblowers should be
investigated promptly and, where necessary, the results acted on by theemployer and the appropriate public regulatory body, law enforcement agency
or supervisory body in an efcient and efective manner.

20. A whistleblower who makes an internal report should, as a general rule,
be informed, by the person to whom the report was made, of the action taken
in response to the report.
VII. Protection against retaliation
21. Whistleblowers should be protected against retaliation of any form,
whether directly or indirectly, by their employer and by persons working foror acting on behalf of the employer. Forms of such retaliation might include
dismissal, suspension, demotion, loss of promotion opportunities, punitivetransfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment.
22. Protection should not be lost solely on the basis that the individual
making the report or disclosure was mistaken as to its import or that theperceived threat to the public interest has not materialised, provided he or
she had reasonable grounds to believe in its accuracy.

23. A whistleblower should be entitled to raise, in appropriate civil, criminalor administrative proceedings, the fact that the report or disclosure was madein accordance with the national framework.

Recommendation CM/Rec(2014)7 ► Page 9

24. Where an employer has put in place an internal reporting system, andthe whistleblower has made a disclosure to the public without resorting to thesystem, this may be taken into consideration when deciding on the remedies
or level of protection to aford to the whistleblower.

25. In legal proceedings relating to a detriment sufered by a whistleblower,
and subject to him or her providing reasonable grounds to believe that the
detriment was in retaliation for having made the report or disclosure, it should
be for the employer to establish that the detriment was not so motivated.

26. Interim relief pending the outcome of civil proceedings should be available for persons who have been the victim of retaliation for having made apublic interest report or disclosure, particularly in cases of loss of employment.
VIII. Advice, awareness and assessment
27. The national framework should be promoted widely in order to develop
positive attitudes amongst the public and professions and to facilitate thedisclosure of information in cases where the public interest is at stake.

28. Consideration should be given to making access to information andconfdential advice free of charge for individuals contemplating making apublic interest report or disclosure. Existing structures able to provide suchinformation and advice should be identifed and their details made available
to the general public. If necessary, and where possible, other appropriate
structures might be equipped in order to fulfl this role or new structures
created.
29. Periodic assessments of the efectiveness of the national framework
should be undertaken by the national authorities.

Protection of whistleblowers ► Page 10

Explanatory
memorandum
Introduction
The importance of whistleblowing and protecting
whistleblowers in Europe
1.
The Council of Europe recognises the value of whistleblowing in deterring and preventing wrongdoing, and in strengthening democratic accountability and transparency. Whistleblowing is a fundamental aspect of freedomof expression and freedom of conscience and is important in the fght against
corruption and tackling gross mismanagement in the public and private
sectors.

2.
Whistleblowing refers to the act of someone reporting a concern ordisclosing information on acts and omissions that represent a threat or harmto the public interest that they have come across in the course of their work;for example, harm to the users of a service, the wider public or the organisation itself, or a breach of the law. It covers reports to employers (managers,
directors or other responsible persons), regulatory or supervisory bodies andlaw-enforcement agencies, as well as disclosures to the public, most typically via
the media and the Internet, public interest groups or a member of parliament.
3.
Whistleblowing can act as an early warning to prevent damage as well
as detect wrongdoing that may otherwise remain hidden. It can help ensure
the efective application of local and national systems of accountability byallowing those legally responsible for the alleged misconduct the opportunity
to address the problem and to account for themselves, and by more readily
identifying those who may be liable for any damage caused.

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4.
However, it has been shown time and again that whistleblowers often
face indiference, hostility or, worse, retaliation, whether they report a concern
within an organisation or enterprise, to an appropriate public authority or
make a disclosure to the public. Instead of viewing whistleblowing as a positive act of “good citizenship” albeit in the context of work, whistleblowers arebranded as disloyal to their colleagues or to their employer. When this happens, the attention is primarily or solely on the whistleblower, admonishingor sanctioning the individual for “breaking ranks” rather than examining andaddressing the information reported or disclosed. When the organisation
itself is acting improperly or attempts to cover up the problem, the focus istypically on stopping the individual from taking the matter further.

5.
So while those at work are often the frst to know that something is wrong
and, therefore, are in a privileged position to inform those who can address
the problem, they are discouraged from reporting their concerns or suspicions
to their employer or to the appropriate authorities for fear of reprisals and theperceived lack of follow-up given to such warnings. As a result, a signifcant
opportunity to protect the public interest is missed.

6.
In order to bring about a change of culture within the workplace, whether
it be private or public, it is important that member States send a strong message to employers to heed and properly act on information reported to themand that retaliation or victimisation of whistleblowers will not be tolerated in a
democratic society. A law that provides clear and swift sanctions against those
who take detrimental action against whistleblowers means that whistleblowers will have a real alternative to silence or anonymity.
7.
Some member States already have laws to protect whistleblowers andprovide them with remedies. A number of these initiatives were in response
to disasters or tragedies in which lives were lost or livelihoods destroyed andit was revealed that those working in or with the relevant organisations knewof the problem and were either too scared about their own position to sayanything or did not know who to address, particularly outside the workplace.
In some instances it has been discovered that staf did raise their concerns
early enough for the damage to have been averted but were ignored.
8.
Laws to protect whistleblowers also help organisations understandthat it is in their interests to make it easier and safer for those who work forthem to report their concerns and that the public should be alerted to serious wrongdoing or risk, particularly when it is not addressed. On the other
hand, organisations that fout the law, engage in wrongdoing to boost profts

Protection of whistleblowers ► Page 12

or whose leaders are corrupt will not want to encourage whistleblowing. In
such instances, it is important that whistleblowers are legally protected whenreporting information to the appropriate authorities and that they have accessto appropriate remedies.
9.
Organisations that let those who work for them know that it is safe andacceptable for them to report concerns about wrongdoing are more likely to:a.

be forewarned of potential malpractice;b.

investigate it; andc.

take such measures as are reasonable to remove any unwarranted danger.

Thus implementing internal whistleblowing arrangements is increasingly
understood to be part of establishing an organisational ethos of integrity,delivering high standards of public and customer service1 and managing risk
in a responsible manner.
10. Furthermore, the emphasis on accountability and democratic principles
is important. Employers, governments and citizens increasingly recognise thatwhile encouraging whistleblowers to speak up averts harm and damage, italso improves public services and strengthens organisational responsibility
and public accountability. Research shows that the vast majority of whistleblowers report their concerns internally frst (no matter what regulations orwhistleblowing laws, if any, are in place) and so it is in the interests of everyone
that such reports are heeded, and whistleblowers protected.
11. Where the internal route cannot prove efective because employers do
not facilitate the communication of whistleblowing concerns, fail to protect
those who speak up or are themselves involved in the wrongdoing or its
cover-up, regulatory bodies, where they exist, are usually considered themost appropriate recipients of such reports. Such bodies have the authorityand power to deal with the issue and they need such information to carry out
their functions efectively. Like employers, however, they need to act on theinformation they receive in order to maintain public confdence.
1. In 2010, the Corporate Executive Board released details of its survey of 500 000 employees
in over 85 countries which found a direct relationship between a culture of integrity in theworkplace and lower incidents of misconduct. Twelve indicators were used, and the onethat most strongly correlated with a higher level of long-term shareholder return (over10 years), was employee comfort in speaking up. A lack of fear of retaliation was identifed as a key element in ensuring comfort. See http://news.executiveboard.com/index.
php?s=23330&item=50990.

Explanatory memorandum ► Page 13

12. In most legal systems, there is little or no readily available protection forsomeone who makes a report to a public authority or a disclosure to the public
even if it is made honestly, is justifed and is reasonable. Accordingly, suchreports or disclosures are often made anonymously in the hope that the source
will be protected. However, anonymity raises a host of issues. More often thannot, anonymous allegations are assumed to be malicious or are considered
to be less credible by those who receive them. Anonymous disclosures canalso be much more difcult to investigate and even impossible to remedy.
Finally, anonymity is not a guarantee that the source of the information will
not be unmasked. Where the person is identifed, the fact that they acted
anonymously can be seen as a sign of bad faith, further jeopardising theirposition. In the worst cases such people forfeit their career. Their plight thenattracts media attention, which can only discourage others from sounding
the alarm.

13. There are also cultural and social attitudes that work against protecting
whistleblowers. Some of these stem from traditional hierarchical organisational
structures in which obedience is valued to the extent that it works against thefow of communication (including about wrongdoing) from the lower to theupper ranks, or similarly where obedience to an organisation is emphasised
more than its accountability to those it is meant to serve. Furthermore, theParliamentary Assembly of the Council of Europe report on whistleblowing (seereferences below) notes that in some countries there are “deeply engrained
cultural attitudes which date back to social and political circumstances, suchas dictatorship and/or foreign domination, under which distrust towards‘informers’ of the despised authorities was only normal”.2
14. Whistleblower protection laws, therefore, ofer a safe alternative to silence
and reinforce the value of facilitating channels to report risk or wrongdoing.
They are also intended to ensure that regulatory authorities act on information they receive and protect those who provide it, and that wider disclosures,to the media for example, are protected when necessary. The latter is more
likely to be seen as reasonable where there are no safe alternative routes forreporting such concerns or when they do not work and the wrongdoing is
ongoing or covered up. Most legal systems, however, will protect disclosures
to the police, for instance when the risk is so serious that any delays would
2. Protection of “whistle-blowers”, Doc. 12006 (14 September 2009), report of the Committee
on Legal Afairs and Human Rights, paragraph 1.

Protection of whistleblowers ► Page 14

cause irreparable or signifcant harm, particularly to the lives or safety ofothers.

15. The interests of employers – whether in the public or private sector – tomanage information and the activities of their personnel must be balancedwith the right of the public to know when their interests are at risk, or when
the law is being broken. In the case of the public sector, access to information
is a fundamental right which allows for increased democratic participation,
sound policy formulation and public scrutiny of State action. In the private
sector, information about how business is conducted is important for consumer protection, fair market competition and the appropriate regulationof fnancial and other business activities. Courts in many jurisdictions haveruled that there can be no confdentiality in wrongdoing and that public
disclosures are valid and protected, particularly when the public interestin having the information outweighs the right of the employer to restrict
it. The European Court of Human Rights has ruled similarly in a number ofcases examining Article 10 of the European Convention on Human Rights(hereinafter “the Convention”) on the right to freedom of expression. See
also paragraph 18.
16. While confdential and anonymous reporting systems are recognised
in some jurisdictions as a valuable tool for receiving information, stronger
whistleblower protection and efective handling of the issues reported will
help ensure that those who come across wrongdoing or a risk to the public
will feel safe and able to speak up in the normal way. As the opportunities for
public disclosures, particularly to the media and public interest groups, areincreasing with new technology, member States are encouraged to take asensible and pragmatic approach to protecting whistleblowing in the public
interest.

Whistleblower protection and the Council of Europe
17. The work of the Group of States against Corruption3 (GRECO), whichmonitors the Council of Europe’s corruption prevention standards that include
the Criminal and Civil Law Conventions on Corruption (ETS Nos. 173 and 174),
has helped keep whistleblower protection on the European agenda. GRECO
has recommended to most member States that staf in public administration
3. See in particular the Second Evaluation Round – www.coe.int/GRECO.

Explanatory memorandum ► Page 15

should be trained in reporting suspected corruption and be properly protected
when they do so.
18. In the context of human rights law, the European Court of Human Rights4
has made some signifcant rulings with regards to whistleblowing, setting out
key principles to apply when considering , in particular, the right to freedomof expression enshrined in Article 10 of the Convention. In 2009, the former
Human Rights Commissioner, Thomas Hammarberg, described the devastating impact of corruption on human rights and stated that, “the control of
information and weak public oversight make it easier for corrupt people toescape sanctions and public censure”.5 In particular it is important to recall that
protecting wider public disclosures of wrongdoing to the media, for example,
is essential for accountability and transparency in a democracy based on therule of law. There is growing recognition in Europe and elsewhere, however,that States need to do more to protect whistleblowers in law and in practice,and to facilitate responsible whistleblowing in all sectors.

19. In 2009, the Committee on Legal Afairs and Human Rights of the
Parliamentary Assembly of the Council of Europe issued a report6 which concluded that while there were various rules in diferent member States, much
more needed to be done at national level. The Assembly subsequently adopted
Resolution 1729 (2010) inviting all member States to review their legislation
concerning the protection of whistleblowers bearing in mind certain guiding principles. At the same time, it adopted Recommendation 1916 (2010)
recommending that the Committee of Ministers draw up a set of guidelines
for the protection of whisteblowers taking into account the principles as set
out by Assembly.
20. Mandated by the Committee of Ministers, the European Committee
on Legal Co-operation (CDCJ) commissioned a report in 2012 to explore the4. The European Court of Human Rights decisions dealing with whistleblowing and Article 10
rights have been with respect to external disclosures in the public domain. The Court set
out six principles in the case of Guja v. Moldova [GC], no. 14277/04, ECHR 2008, to help
determine whether an interference with the Article 10 right to freedom of expression was“necessary in a democratic society”. These principles were reiterated in the case of Heinischv. Germany, no. 28274/08, ECHR 2011 (extracts) and again in Bucur and Toma v. Romania,
no. 40238/02, 8 January 2013. The principles are set out in the commentary on the draft
recommendation (paragraph 53 below).
5. “Corruption is a major human rights problem”, presentation by the Human Rights
Commissioner (Hammarberg) to the High-level Conference on the occasion of GRECO’s
10th anniversary (Strasbourg, 5 October 2009).
6. See note 2 above.

Protection of whistleblowers ► Page 16

feasibility of a legal instrument on the protection of whistleblowers.7 The report
reviewed the steps taken by Council of Europe member States to address
whistleblowing and found that few had comprehensive legislation covering
the protection of whistleblowers per se – that is, rules for those working inany sector, whether public or private, and covering wrongdoing or serious
risk as broadly understood. That said, some member States are currently inthe process of legislating in this area or intend to do so.

21. The feasibility report noted other important international initiatives onwhistleblower protection that will apply to some but not all Council of Europe
member States. These include provisions in the United Nations Convention
Against Corruption (UNCAC), a commitment by the European Commission toassess8 the state of whistleblower protection in the EU member States with aview to doing further work in this area, the European Parliament’s resolution
calling for the establishment of an efective and comprehensive European
protection programme for whistleblowers and others in the public and private
sectors,9 as well as a commitment on the part of the G20 member States toprotect whistleblowers as part of its Action Plan to Combat Corruption10 andthe publication of its compendium of best practices and guiding principles forlegislation on the protection of whistleblowers issued in 2010. Finally, there
are examples of domestic laws aimed at private sector corruption and fnancial
malpractice that also apply to multinational companies operating in Europe.11
22. While these initiatives confrm the necessity for member States to address
whistleblowing, a closer look at the reality of legal protection even in countries
where some form of whistleblowing protection is in place, reveals the needfor clearer guidance and direction. For example, whistleblower protection
is not actively endorsed by national governments and few resources are
7. P. Stephenson and M. Levi (2012), “The protection of whistleblowers: a study on the feasibility of a legal instrument on the protection of employees who make disclosures in the
public interest”, CDCJ(2012)9FIN.
8. Transparency International Berlin assessed 10 European Union member states in 2009
on behalf of the European Commission. This was extended to the then 27 member states
and the resulting report, Whistle-blowing in Europe: Legal Protections for Whistleblowers
in the EU was published in November 2013 (www.transparency.org/whatwedo/pub/
whistleblowing_in_europe_legal_protections_for_whistleblowers_in_the_EU).
9. European Parliament Resolution (23 October 2013) on organised crime, corruption andmoney laundering: recommendations on action and initiatives to be taken (fnal report)(2013/2107(INI)). See in particular paragraphs 14, 70 and 109.
10. Action Point 7 of the G20 Action Plan to Combat Corruption.
11. The “Sarbanes-Oxley” (2002) and “Dodd-Frank” (2010) laws, United States of America; theUnited Kingdom’s Bribery Act, 2010.

Explanatory memorandum ► Page 17

committed to ensuring that where disclosures are made to regulatory bodies,for example, these are handled properly and the interests of the whistleblower
are safeguarded.

Recommendation CM/Rec(2014)7of the Committee of Ministers to member Stateson the protection of whistleblowers
23. Recommendation CM/Rec(2014)7 of the Committee of Ministers tomember States on the protection of whistleblowers is designed to situate
whistleblower protection frmly within the sphere of democratic principles
and safeguarding the public interest. The purpose is to help member States
design and develop a framework that protects whistleblowers in law, which
is implemented in practice and which is properly tailored to national systems.
While the recommendation is intended to create a common set of principles
to which all member States adhere, the manner in which each member States
gives efect to these principles will not be uniform.

24. The recommendation was prepared by a drafting group of members of
the European Committee on Legal Co-operation (CDCJ) and fnalised at its 88th
plenary meeting (16-18 December 2013). It was adopted by the Committeeof Ministers on 30 April 2014.
25. The consultation with various stakeholders on the draft recommendation was ensured throughout the drafting process. The CDCJ sought the viewsof its members prior to commissioning the feasibility study and throughout
the drafting process (October 2012-October 2013). A meeting was held in
Strasbourg (30-31 May 2013) to consult with experts and practitioners fromacross Europe on key issues emanating from the drafting of the recommendation already undertaken by the CDCJ Bureau in an enlarged composition. The
aim was to bring together a cross-section of people working in the feld andrelated areas including whistleblower support bodies, employers, regulators,
lawyers, judges, privacy experts, fraud investigators, media representatives,
unions, ombudsmen and whistleblowers. The discussion focused on threeareas – free speech, transparency and privacy; legal framework; and remedies
and proceedings – and the resulting conclusions led to the preparation of arevised draft recommendation.
26. Recommendation CM/Rec(2014)7 on the protection of whistleblowers
has been drawn up on the basis of legal expertise and research from acrossCouncil of Europe member States. The principles build on existing international,

Protection of whistleblowers ► Page 18

European and national laws and standards, and in particular the principle that
there can be no confdentiality in malfeasance or wrongdoing. Protecting the
public from harm is the guiding principle throughout and must be at the heartof the work member States do to protect whistleblowers.

27. Recommendation CM/Rec(2014)7 on the protection of whistleblowers
is not only a declaration of principles but also aspires to be of practical use
to governments, civil society, citizens, regulatory bodies, law-enforcement
authorities and others in the creation and implementation of sensible nationalframeworks for receiving warnings of wrongdoing in the workplace and protecting those who report or disclose such information from unfair treatment.

Commentary
Operative clause
28. While many member States of the Council of Europe have rules covering, directly or indirectly, certain aspects of whistleblowing, most member
States do not have a comprehensive national framework for the protectionof whistleblowers. The key objective of the recommendation is to encourage
member States to put in place such a framework.
29. The particular characteristics of the national legal systems of member
States, and the political and legislative choices that they wish to make in thisarea, will determine whether or not a member State opts for a single law on
the protection of whistleblowers. The recommendation takes no stand on thisissue. What it does stress, however, is the importance of the various normative,
institutional and judicial elements which, together, provide a comprehensive
and coherent whole in which reporting and disclosure channels, investigatory
and remedial mechanisms, and legal remedies for the protection of whistleblowers all interact with each other efectively. This is referred to as a “framework” for ease of reference in the recommendation. It should be understoodas implying fexibility and synergy rather than rigidity and uniformity.

30. The recommendation focuses on the protection of whistleblowers since
it is considered that through the provision of adequate legal measures for theprotection of whistleblowers member States can best ensure the efcientand efective communication of information on threats to the public interestand the action by employers and the public authorities to remedy them. The
principles appended to the recommendation do, in any event, include provisions on investigation and remedial action.

Explanatory memorandum ► Page 19

31. It is the de facto working relationship of the whistleblower, rather than his
or her specifc legal status (such as employee), that gives a person privileged
access to knowledge about the threat or harm to the public interest. Moreover,between member States, the legal description of individuals in employment
or in work can vary and likewise their consequent rights and obligations.
Furthermore, it was considered preferable to encourage member States toadopt an expansive approach to the personal scope of the recommendation.
For these reasons it was decided to describe the personal scope by reference
to the person’s “work-based relationship”. This broad approach does not on
the other hand imply that national law should aford to persons who are not,in strict terms, employees (such as self-employed persons, trainees, those set
to work by their employer with another employer and volunteers) the same
form of protection or legal remedy, for example in relation to dismissal orsuspension. Indeed, the appropriate form and level of protection will dependon the legal nature of the person’s work-based relationship and the nature ofany detriment they sufer. See also paragraph 79 in this context.

32. As with all recommendations of the Committee of Ministers, the recommendation is to be applied within the context of each member State’s
own constitutional arrangements. Accordingly, in some member States,
the framework, or elements of it, will be devolved to regional or local Stateauthorities or, indeed, in some cases, to the social partners and the collective
labour agreements concluded between them. What is important is that theframework as a whole is comprehensive and coherent, with its diferent elements capable of interacting efectively.

33. More specifcally, in the case of constitutional systems that accord anormative role to collective bargaining arrangements, whether to all or only
to part of the workforce, it is sufcient that the member States concerned
ascertain the extent to which these arrangements include provisions on theprotection of whistleblowers and, where necessary, encourage the social
partners to take inspiration from the principles set out in the appendix to therecommendation. Moreover, and where possible, it would be helpful for suchencouragement to be underpinned by the law.

Appendix – The 29 principles
34. As stated in the operative clause of the recommendation, the principles
set out in the appendix are intended to guide member States when reviewing

Protection of whistleblowers ► Page 20

their current laws or when introducing new or amended legislation. These
principles are not exhaustive, and, because of their character, each member
State can apply or modify them as it considers most appropriate in the context
of its own legal system. As already mentioned, the key objective of the recommendation is to encourage member States to put in place a comprehensive
and coherent national framework. The defnitions aim to make it easier to readthe appendix to the recommendation.

Material scope
Principle 1

35. The reference to a “framework” should be understood as an arrangementof various normative, institutional and judicial elements which, together,
provide a comprehensive and coherent whole. It may be a single legislativeact, although even if this is the case, the legislation is likely to build on existing regulatory and judicial structures. The reference to a “national” framework
should be understood as referring to the application of the recommendation,in accordance with the specifc constitutional arrangements of each member
State.

36. Principle 1 makes it clear that the end objective of the national framework
is to facilitate public interest reporting and disclosures rather than to control
or hinder them, and that this objective is to be achieved by putting in placemeasures to protect whistleblowers. It should be noted that the action offacilitating, has been specifcally chosen in this context in preference to thatof promoting. By this it is understood that eforts should be made to makeit efectively easier for persons to make reports or disclosures of information
concerning threats or harm to the public interest. In order to ensure that
there is in place an appropriate legal environment that can properly facilitate
reporting and disclosures, it may be necessary for member States to conduct
a thorough and systematic review of their existing arrangements with a viewto identifying areas where existing rules need to be reformed and harmonisedor new rules developed.
37. A normative framework takes into account the rules, rights and duties
that govern and impact on employment or contractual or voluntary working
relationships. Collective bargaining agreements include their own normative
provisions. A review would enable the legislator to determine whether andExplanatory memorandum ► Page 21

how such rules facilitate or hinder the honest12 communication of warnings
or reports of threats or harm to the public interest, whether within the working relationship (i.e. to the employer or person designated by the employer
to receive reports in confdence) or outside it (e.g. to a regulator, the lawenforcement agencies or the media). In order to give an idea of the scopeof a possible normative framework on whistleblowing, a review of relevant
legislation, professional codes and internal rules could include, for example:–

human rights law – having particular regard to protecting the right tofreedom of expression guaranteed in Article 10 of the Convention;–

criminal law – in particular with respect to protection against criminal
prosecution for defamation; prohibiting retaliation against any employee
who reports a crime;–

media law – in particular, the protection of journalist sources;–

other sector-based laws – on, for example, anti-corruption, competition,
health and safety, accounting, environmental protection and company
and securities;–

contract and employment law – in particular, protection against breachof confdentiality or loyalty; prohibition or nullifcation of any agreement
which purports to preclude an individual from making a public interest
report or disclosure; protection from unfair dismissal or any other formof employment-related retaliation including acts committed by peers
or colleagues;–

labour law/labour agreements – in particular the collective right to reportor disclose public interest concerns;–

professional reporting duties – protection for those who have specifc
duties to report or disclose (for example, compliance ofcers, health andsafety ofcers, company directors, child protection ofcers);–

specifc anti-corruption measures – having regard to those foreseen by
the Council of Europe Civil Law Convention on Corruption (ETS No. 174);–

codes of conduct – rules on conduct and integrity and the reporting ofbreaches of the rules;

12. “Honest” or “bona fde” means “without fraud or deceit”. It does not mean the individual isright nor does it mean he or she has no other ulterior motive. This distinction is importantin whistleblowing as it means that only someone who reports or discloses information
which he or she knows to be untrue or false should lose the protection of the law.

Protection of whistleblowers ► Page 22

–disciplinary policies and procedures – particularly with regard to(administrative) ofences of breaches of confdentiality or defamation;–other organisational policies or rules – including data protection,
disciplinary codes, media communications.

Clearly, a review of public law norms, created by legislation or law, would be
carried out by the relevant public authorities, whereas those of a private law
character (professional and employers’ codes) would be carried out by therelevant professional bodies or employers.
38. The regulatory authorities, law-enforcement agencies and supervisory
bodies comprise the institutional framework. They ensure that there are channels for reporting by whistleblowers, as well as structures and mechanisms toreact to such information. It is important that they complement each other andofer efective linkages with the employers and court structures. It is importantto review the overall framework of these structures in order to ensure that it
is working properly, and that there are no gaps in the system.
39. In order to make protection a reality, swift and efective access to legal
review, decision and remedy for any retaliation or detriment must be guaranteed. This judicial framework can include access to general or specialist
authorities, tribunals and courts who have the power to sanction those foundto have taken unfair action against a whistleblower or failed to properly examine the report or disclosure they received, and to provide a remedy to thewhistleblower for any victimisation or retaliation for the report or disclosure.
Ultimately, however, whistleblowers should have access to a court of law.
40. The “rights and interests” of whistleblowers include human rights (e.g.
freedom of expression) as well as, more generally, those provided by a member
State’s civil, administrative and criminal law.
Principle 2
41. Throughout Europe, the public interest is understood as the “welfare”
or “well-being” of the general public or society. Protecting the welfare andwell-being of the public from harm, damage or breach of their rights is at theheart of this recommendation. Thus, Principle 2 needs to be read in conjunction with Principle 1. The purpose of a national framework is to facilitate thereporting or disclosing of information about wrongdoing or risk to the public
interest as it is in the public interest to prevent and punish such acts. Thus,
the recommendation encourages a change of paradigm, from whistleblowing
being considered as an act of disloyalty to one of democratic responsibility.

Explanatory memorandum ► Page 23

42. While what is in the public interest will in many areas be common
ground between member States, in other areas there may well be a diferenceof appreciation. What constitutes the public interest is, therefore, intentionally not defned in the recommendation. This is left to each member State, aposition refected by the European Court of Human Rights in its case law.13
Principle 2 makes this clear, while also drawing attention to the importanceof including the three areas mentioned (risks to public health and safety, risks
to the environment and violations of law and human rights).
43. Most member States will have experience in balancing the interestsof employers (public or private) to manage and run their organisations with
the need to ensure the public is protected from exploitation or harm. This is
helpful in defning the scope of information that falls within the defnition of“public interest”. Some member States, like Norway, defne it in simple terms,
and other member States, like Romania and the United Kingdom, set out
broad categories of risks or wrongdoing. The following is a non-exhaustive
list of categories of (reported or disclosed) information for which it is typicallyconsidered that a whistleblower should be protected:–

corruption and criminal activity;–

violations of the law and administrative regulations;–abuse of authority/public position;–risks to public health, food standards and safety;–

risks to the environment;–

gross mismanagement of public bodies (including charitable foundations);–

gross waste of public funds (including those of charitable foundations);–a cover-up of any of the above.

44. However, member States should defne the public interest for the purposes of their national framework on protecting whistleblowers. Principle 2
refers to the importance of its scope being clearly specifed in the relevant
13. See Former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII.
“The Court is of the opinion that because of their direct knowledge of their society andits needs, the national authorities are in principle better placed than the international
judge to appreciate what is ‘in the public interest’ […] The Court, fnding it natural that themargin of appreciation available to the legislature in implementing social and economic
policies should be a wide one, will respect the legislature’s judgment as to what is ‘in the
public interest’ unless that judgment is manifestly without reasonable foundation (see theJames and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98,
p. 32, § 46)”.

Protection of whistleblowers ► Page 24

law. This is so that any member of the public can be reasonably expected tounderstand what is covered and what is not, and make an informed decisionaccordingly.

Personal scope
Principles 3 and 4
45. Principles 3 and 4 take a broad and purposive approach to the range ofindividuals who might come across wrongdoing in the workplace or throughtheir work-related activities. From the perspective of protecting the public
interest, these are all individuals who by virtue of a de facto working relationship (paid or unpaid) are in a privileged position vis-à-vis access to informationand may witness or identify when something is going wrong at a very earlystage – whether it involves deliberate wrongdoing or not. This would include
temporary and part-time workers as well as trainees and volunteers. In certain
contexts and within an appropriate legal framework, member States mightalso wish to extend protection to consultants, freelance and self-employedpersons, and sub-contractors; the underlying reasons for recommending
protection to whistleblowers being their position of economic vulnerability
vis-à-vis the person on whom they depend for work.
Principle 5

46. Principle 5 recognises that reporting or disclosing information about
wrongdoing or serious malpractice related to national security, defence,
intelligence, public order or international relations of the State is in the public
interest but that there are legitimate reasons why member States may wish
to apply a restricted set of rules in some or all of the cases mentioned. The
principle is based on the assumption that member States may introduce ascheme of more restrictive rights in relation to the general scheme but thatthey may not leave the whistleblower completely without protection or apotential defence.
47. It is to be noted that Principle 5 refers to information only. It does not
permit categories of persons (such as police ofcers, for example) to be subject
to a modifed scheme. Rather, it is the category of information that may besubject to a modifed scheme. The principle, therefore, extends, for example,
to non-military personnel who, through a work-based relationship with themilitary (sub-contractors, for example) acquire information on a threat or harmto the public interest.

Explanatory memorandum ► Page 25

Global Principles on National Security and the Right to Information14
The Global Principles were drafted by 22 organisations and academic centres
in consultation with more than 500 experts from more than 70 countries at
14 meetings held around the world, facilitated by the Open Society JusticeInitiative. The process culminated in a meeting in Tshwane, South Africa,
which gives the principles their name. They were issued on 12 June 2013.

The Tshwane Principles provide that laws should protect public servants –including members of the military and contractors working for intelligenceagencies – who disclose information to the public so long as four conditions are met: (1) the information concerns wrongdoing by government or
government contractors (defned in some detail); (2) the person attempted
to report the wrongdoing, unless there was no functioning body that was
likely to undertake an efective investigation or if reporting would have
posed a signifcant risk of destruction of evidence or retaliation against thewhistleblower or a third party; (3) the disclosure was limited to the amountof information reasonably necessary to bring to light the wrongdoing; and(4) the whistleblower reasonably believed that the public interest in having
the information revealed outweighed any harm to the public interest thatwould result from disclosure.
Even if the disclosure does not meet the above four criteria, the principles
recommend that the whistleblower should not be punished so long as
the public interest in disclosure outweighs the public interest in keeping
the information secret. To the extent that a country does have laws thatcriminalise disclosure to the public of classifed information, any punishment should be proportionate to the harm actually caused.
The principles refect jurisprudence and practice from around the world
including two signifcant cases of the European Court of Human Rights:
Guja v. Moldova (2008) and Bucur and Toma v. Romania (2013).15
14 15

14. See http://www.opensocietyfoundations.org/publications/global-principles-nationalsecurity-and-freedom-information-tshwane-principles. The Parliamentary Assembly of theCouncil of Europe welcomed the adoption of these principles (the “Tshwane Principles”)
which are designed to give guidance to legislators and relevant ofcials throughout theworld on the protection of whistleblowers in the context of national security – Resolution
1954 (2013) on national security and access to information, paragraph 7.
15. Guja v. Moldova [GC], no. 14277/04, ECHR 2008; Bucur and Toma v. Romania, no. 40238/02,
8 January 2013.

Protection of whistleblowers ► Page 26

Principle 6
48. Principle 6 refers to situations where, for example, a lawyer learns fromhis or her client of a risk or harm to the public interest and decides to report ordisclose the information without the consent of the client. In such a situation,
the national framework of the member State should not allow the lawyer toescape being sanctioned for having breached the professional code of client
confdentiality unless a breach is required by law (e.g. money laundering).
Nor should persons working for the lawyer be able to avail themselves ofprotection under the national framework if they report or disclose information given to their lawyer-employer. The principle recognises the importanceof professional privilege or client confdentiality between a lawyer and his or
her client in a democratic society governed by the rule of law. The principle
extends to all forms of professional privilege.
49. It should be noted that a person who seeks advice, whether it be from alawyer or another person, or who makes a confession to a priest, is not making
a report or disclosure for the purposes of this recommendation.

Normative framework
Principle 7
50. The importance of a comprehensive and coherent approach in nationallaw and legislation to the protection of whistleblowers has already been mentioned (see paragraph 29). A comprehensive approach will ensure a coverageof persons and situations that is as wide as possible. It implies that the relevant
norms may be legislative or contained in legal documents (such as collective
bargaining agreements) and professional and employer codes. A coherent
approach will ensure that potential whistleblowers are not discouraged or
penalised by conficting or restrictive legal provisions, and that their reports
or disclosures are acted upon in an efective manner. Again, as already mentioned in connection with the term “framework”, the term “comprehensive andcoherent” does not necessarily imply a single legislative act. Member States
may prefer to maintain or build upon an arrangement of diferent provisions
and measures, although, in this case, the need to ensure that the system as awhole is comprehensive and coherent will be all the more important.

Explanatory memorandum ► Page 27

Principle 8
51. In implementing the recommendation member States will wish to balance various interests and principles. For an individual who reports a concern
about wrongdoing within the working relationship – to the employer or to aperson designated by the employer to receive reports in confdence – there
is usually little or no basis in law for an employer to take action against that
person in any event. There is no breach of confdentiality or duty of loyalty.16
Outside of the working relationship, however, it is recognised that the interestof employers to manage their organisations and to protect their interests (forexample, intellectual property rights) must be balanced with the interest of the
public to be protected from harm, wrongdoing or exploitation. This balancing
must take into account other democratic principles such as transparency, rightto information and freedom of expression, and the media, all of which tend
to favour disclosure over restricting information. The phrase, “no more thannecessary”, strikes the appropriate balance between the diferent competinginterests.

52. Principle 8 properly positions whistleblower protection as a democratic
accountability mechanism. While this means that it is a matter of common
sense and good governance that individuals should report concerns about
wrongdoing or risks of harm to those closest to the problem and those best
able to address it (i.e. to the employer or appropriate regulator), the law should
also recognise and protect wider disclosures of information.

53. A disclosure made in the public domain (this means outside the employment or regulatory relationship) to the media for example, triggers otherimportant issues as indicated above, and in this regard the European Court of
Human Rights has made a number of important rulings. In the cases of Guja v.
Moldova and later in Heinisch v. Germany and Bucur and Toma v. Romania,17 theCourt has set out six principles on which it has relied in determining whether
an interference with Article 10 (freedom of expression) of the Convention
in relation to the actions of a whistleblower who makes disclosures in the
16. It is important that any rules on defamation do not hinder internal reports of suspected
wrongdoing. In this regard, any action taken against anyone for misconduct as a resultof an initial report should be based on the rules of natural justice, and, as a result, there
should be a full and fair investigation of the facts and an opportunity for the person to
respond.
17. Guja v. Moldova [GC], no. 14277/04, ECHR 2008 and again in Heinisch v. Germany, no. 28274/08,
ECHR 2011 (extracts).

Protection of whistleblowers ► Page 28

public domain was “necessary in a democratic society”. These principles are
set out below in the order used by the Court in the case of Bucur and Tomav. Romania:18
i.
whether the person who has made the disclosure had at his or her disposal alternative channels for making the disclosure;ii.
the public interest in the disclosed information. The Court in Guja v.
Moldova19 noted that “in a democratic system the acts or omissions of government must be subject to the close scrutiny not only of the legislative andjudicial authorities but also of the media and public opinion. The interest which
the public may have in particular information can sometimes be so strong as
to override even a legally imposed duty of confdence”;
iii. the authenticity of the disclosed information. The Court in Guja v. Moldova20
reiterated that freedom of expression carries with it duties and responsibilities
and any person who chooses to disclose information must carefully verify, tothe extent permitted by the circumstances, that it is accurate and reliable. The
Court in Bucur and Toma v. Romania21 bore in mind Resolution 1729 (2010) of
the Parliamentary Assembly of the Council of Europe and the need to protect
whistleblowers on the basis that they had “reasonable grounds” to believe thatthe information disclosed was true;
iv. detriment to the employer. Is the public disclosure so important in a
democratic society that it outweighs the detriment sufered by the employer?
In both Guja v. Moldova and Bucur and Toma v. Romania the employer was apublic body and the Court balanced the public interest in maintaining publicconfdence in these public bodies against the public interest in disclosing
information on their wrongdoing;v.
whether the disclosure is made in good faith. The Court in Guja v. Moldova
stated that “an act motivated by a personal grievance or a personal antagonismor the expectation of personal advantage, including pecuniary gain, would
not justify a particularly strong level of protection”;
18. See note 15, Bucur and Toma.
19. See note 15, Guja.
20. Ibid.
21. See note 15, Bucur and Toma.

Explanatory memorandum ► Page 29

vi. the severity of the sanction imposed on the person who made the disclosure and its consequences.
Principle 9

54. Principle 9 refers to “mechanisms” as meaning the practical arrangements– supported by law where necessary – that already exist, can be strengthened
or would need to be developed in order to ensure that individuals know
where and to whom to make reports or disclosures, how the information will
be handled and what protection can be expected.
55. Experience shows that where States have reviewed their systems andstrengthened or implemented new arrangements that allow for the appropriate disclosure of information and, importantly, the prompt examinationand investigation of any material issues, the change in workplace culturethat ensures greater local accountability is much faster and deeper. This also
requires States to ensure that regulators have the right powers to handle
disclosures and protect whistleblowers, and that they are properly resourced
to set up efective systems.
Principle 10
56. Principle 10 concerns the rights of natural persons only, whether an
employer or third party, who sufers loss or injury as a result of a report ordisclosure. The normative framework should not take away their rights undergeneral law (civil and administrative) in cases where the report or disclosure
contains inaccurate or misleading information.

Principle 11
57. Principle 11 makes it clear that no term or clause in any contract or agreement – whether a contract for work or a settlement agreement – between an
individual and the person or body for whom they are working can be relied
on to preclude someone from making a public interest report or disclosure.
In this sense no one can contract out of the right to make a public interest
report or disclosure.
58. Provisions in regulations or service agreements covering the employment of civil servants or other public ofcials, as is the case in someProtection of whistleblowers ► Page 30

member States, are also intended to be covered by the reference to legal
obligations.

Channels for reporting and disclosures
Principle 12

59. The purpose of Principle 12 is to encourage member States to put in placea normative framework that is clear and operational, and which furthers thegeneral interest of transparency and accountability. By providing greater andsufcient protection to whistleblowers, member States will both encouragereporting, in an open manner, of threats and harm to the public interest and,in this way, discourage the making of anonymous denunciations. Reportingin an open manner does not, however, imply a right to disclose confdential
information unrelated to the suspected threat or harm to the public interest.
Principles 13 and 14
60. Principles 13 and 14 identify potential recipients of information on acts
and omissions that represent a threat or harm to the public interest. They should
be read in conjunction with Principle 8, and the explanation given thereto
in paragraphs 51-53 above. The channels, as they are described, follow the
logic adopted throughout the recommendation of referring to “reporting” asan action that takes place within the organisation or enterprise and to public
regulatory bodies so as to help ensure that the information gets to thosepeople most able to investigate and with powers to deal promptly with the
problem. In a democracy, ensuring that a public disclosure of information – tothe media or a member of parliament, for example – can be made is a vital
safeguard to protecting the public interest and is also enshrined in freedomof expression right.

61. The various channels indicated in Principle 14 recognise that responsibility
for wrongdoing or harm resulting from acts or omissions in the workplace orwork-related activities may rest primarily with the employer and responsible
public regulatory authorities. Considering how legal accountability works ineach system and who has power to address a problem or make changes will
help member States identify the appropriate recipients for public interest
reports and disclosures. It will also help identify the support and resourcesdiferent recipients might need to handle and act on such information.

Explanatory memorandum ► Page 31

Accountability

Public,e.g. Media, Membersof Parliament
Regulator,
e.g. Ombudsperson,
National Audit

Right to freedomof expression

Employer,
Responsible
PersonLaw enforcement
e.g. crimes

The fgure shows who is closest to the problem (i.e. the object of the whistleblowing) and, therefore, who is the closest placed in terms of accountability
and potential reporting and disclosure. Reporting crimes and freedom of
expression are included. All channels are interconnected, without any orderof priority, and should be available and protected in an appropriate way.

62. In order to facilitate the communication of information about wrongdoing or risk, organisations or enterprises of sufcient size are likely to appoint
persons with responsibility for receiving reports in confdence: designatedofcers or confdential advisors, for example. To be efective, such persons,while not necessarily being independent of the employer, should enjoy acertain degree of autonomy in discharging their responsibility. In large businesses, reports may also be made to the board and non-executive directors
are now taking on more responsibility in this regard. To cater for the needsof small businesses, however, and even more generally, some member
States may consider it benefcial to establish a public body or commission

Protection of whistleblowers ► Page 32

to receive such reports in confdence. Such a body would not be responsible
for remedial action as this, of course, remains within the prerogative of theemployer or regulatory authority. Government departments, businesses andprofessional associations often provide support and guidance to small andmedium-sized enterprises and can be encouraged to include guidance on
whistleblowing.

Principle 15

63. Clearly member States will need to do more than implement a law onwhistleblower protection to encourage employers to ensure their internalarrangements allow those working for them to raise issues early and safely.
It must be recalled that in law most communications within a working relationship, to an employer or an employment-related structure – such as a staf
association, a union representative or an organisational ombudsman – do
not breach any duty of confdentiality owed to the employer (including theduty of loyalty in common-law systems). There should be few, if any, barriers to reporting concerns about wrongdoing or risks internally within theemployment context and protection against retaliation should be as close
to automatic as possible since it is in this context that employers can take an
informed view of a problem and can address it before any serious damage
occurs.
64. There are a number of ways in which member States can help employers understand the value of facilitating internal whistleblowing. The mostimportant is to implement a clear and strong legal framework that makes
an employer liable for any detriment caused to anyone working for them forhaving exercised their right to report a concern or disclose information about
wrongdoing according to the law. Employers who understand that those
who work for them can report directly to a regulator or independent bodyand that they will be liable in law if they try to deter their staf from doing
so, will understand why it is in their interests to implement safe and efective
internal arrangements. Furthermore, member States can make available theresearch in this area that shows the value of whistleblowing in terms of good
governance and detecting wrongdoing.22
22. The Association of Certifed Fraud Examiners (ACFE), for example, confrmed that staf tipofs have been found to be the most common form of fraud detection in all their researchundertaken since 2002. The global headquarters of the ACFE are in the United States ofAmerica with regional and national ofces around the world.

Explanatory memorandum ► Page 33

65. No explicit mention is made to providing employers with assistance insetting up internal reporting procedures. Indeed, in many cases this may not
be necessary or even possible. Some member States may, however, wish toconsider providing fnancial, technical or legal support, particularly for employers in areas where there may be more of a likelihood of threats or harm to the
public interest.
Principle 16
66. Adherence amongst the workforce to new internal reporting systems
is likely to be enhanced if employees and their representatives are consulted
beforehand, particularly in large organisations. Whereas in some member
States employee consultation will be a common practice, it may not, however, always be appropriate, and this principle has been drafted accordingly.
The term “worker” is used in the recommendation to ensure that all workers,
however their legal status is defned by the national legal system, are coveredby this principle.
Principle 17

67. As indicated under Principle 14, this recommendation does not establish
an order of priority between the diferent channels of reporting and disclosure.
Such an order of hierarchy would in any event be difcult to establish as, inpractice, each situation will be diferent and will determine which channel isthe most appropriate. In some member States, constitutional rules on freedomof expression would also make such an exercise in giving preference to one orother channel impossible. While Principle 17 States that internal reporting andreporting to public regulatory bodies, law-enforcement agencies and supervisory bodies should be encouraged it is understood that this should not beto the detriment of the protection of whistleblowers. The encouragement forinternal reporting is given in the recommendation because setting up efective internal reporting systems is part of good and transparent management
practice and governance, and, together with reports to public regulatory
authorities, enforcement agencies and supervisory bodies, internal reportingcan contribute in many cases to the early and efective resolution of risks tothe public interest.
68. Principle 17 reinforces the clear message to member States that a nationalframework to protect whistleblowers must build on democratic principles andtherefore a law that seeks simply to manage and control information rather

Protection of whistleblowers ► Page 34

than a law that seeks to ensure legal and public accountability will not meet
Council of Europe standards for whistleblower protection.

Confdentiality
Principle 18
69. While reporting openly and without fear is ideal, experience showsthat legal protection alone is not reassurance enough for an individual whocomes across wrongdoing in the course of their work and is unsure whether
or to whom to report it, or is worried about their position. For these reasons,confdentiality, as set out in Principle 18, should be ofered and guaranteed
to the individual disclosing the information in order to reassure them andensure the focus remains on the substance of the disclosure rather than on
the individual who made it. The principle of confdentiality (i.e. where thename of the individual who reported or disclosed information is known by
the recipient but will not be disclosed without the individual’s consent, unlessrequired by law) in the recommendation should not be confused with anonymous reporting or disclosures (i.e. where a report or information is received
but no one knows the source).

70. Principle 18 assumes that the whistleblower has given his or her nameor is otherwise known to the person to whom the report has been made. It
also assumes that disclosure of the person’s identity, whether internally or
externally, can only be made with his or her consent. However, the principleof confdentiality should not act as a barrier for sharing information related tothe investigation or handling of a report between regulatory or investigatory
bodies so long as proper safeguards are in place and these are explained to
the whistleblower. Moreover, in legal systems where consent is not required
because the overriding principle is one of openness, the existence of safeguards against misuse of the information by others to the detriment of thewhistleblower would satisfy the requirements of Principle 18.

71. The principle also recognises that protecting the identity of the whistleblower can occasionally confict with the rules of fairness (for example, fairtrial and the common-law notion of natural justice). Where it is impossible toproceed – for example, to take action against a wrongdoer or those responsible for the damage caused without relying directly on the evidence of thewhistleblower and revealing his or her identity – the consent and co-operationof the whistleblower should be sought, and any concern that he or she might
have about their own position addressed. In some cases it may be necessary

Explanatory memorandum ► Page 35

to seek a judicial ruling on whether and to what extent the identity of thewhistleblower can be revealed.

72. Member States will need to consider how best to enforce the obligationin Principle 18 in the context of their own national legal systems and, importantly, taking into account the rights of citizens to communicate with theirelected representatives and the right of journalists to protect their sources.

Acting on reporting and disclosure
Principle 19
73. Acting on reporting and disclosure is the key concern of whistleblowers – they wish to see action taken to remedy the wrongdoing that they havehighlighted. It is also in the interests of organisations, regulatory bodies, lawenforcement agencies and citizens that reports and disclosures are examined,
investigated and where necessary, action is taken to remedy a problem, particularly to avoid more serious harm. “Promptly” means that action should betaken without delay, taking into account the resources available and the scaleof the harm to the public interest that is revealed in the report or disclosure.

74. Research on whistleblowing in many jurisdictions consistently showsthat one of the main reasons for not reporting concerns is that whistleblowers believe it will not make a diference. For example, American surveys offederal employees repeatedly found that fear of retaliation is only the second
reason why some half a million employees choose not to blow the whistle.
The primary reason is that they do “not think that anything would be done tocorrect the activity”.23
75. There are many ways in which member States can ensure that public
interest concerns are investigated promptly and addressed where necessary.
Along with providing appropriate and adequate resources to regulatory bodies to promote, receive and handle public interest reports, courts might beempowered to award damages to the individual whistleblower or directly
sanction, fne or penalise an employer or other responsible person for failingto conduct a prompt and adequate investigation in light of the information
received. Similar powers could be provided to regulatory bodies directly as
part of their remit. There are other innovative ways in which member States
23. See T. Devine, “Whistleblowing in the United States: The gap between vision and lessons
learned”, in Whistleblowing Around the World: Law, Culture and Practice, (2004), G.Dehn and
R. Calland (eds.), London, British Council.

Protection of whistleblowers ► Page 36

could encourage employers (private and public) to address whistleblowing
responsibly. Some examples from the private sector include the approach of“comply or explain”24 or introducing a strict liability ofence for failing to prevent
harm or damage and a defence of having in place “adequate measures”.25
Principle 20
76. Ensuring that the individual who made the report is kept informed of
the investigation and its outcome as far as is legally possible strengthens thenational framework overall as it builds trust and confdence and reduces thelikelihood that further unnecessary disclosures will be made. Principle 20 is
focused primarily on reports made internally within the organisation or enterprise. However, member States may also consider it benefcial to extend theprovision to reports made to public bodies within the confnes of a regulatory,
enforcement or supervisory framework.

Protection against retaliation
77. Principles 21 to 26 (as well as principles 18 and 20) make it clear that themanner in which reports and disclosures are handled makes a diference, bothto the outcome of the issue reported or disclosed as well as to safeguarding
the interests of the individual who raised it. While whistleblower protection
is meant to ofer a safe alternative to silence, it also ofers a safe alternative
for both the employer and whistleblower to the anonymous tip-of or leak.
At a time where it is more and more difcult to control the communicationof information, whistleblower protection helps guide such information in a
responsible way.
Principle 21
78. Principle 21 (together with Principle 25, see below) seeks to ensurea strong level of protection in law for those who alert their employers, theauthorities or the wider public to wrongdoing or risks that damage or harm
the public. Experience from around the world demonstrates that the forms ofharassment are varied and numerous. It must be recalled that whenever anindividual is retaliated against for properly reporting or disclosing information about wrongdoing in their workplace, it has a chilling efect on anyone
24. Guidance on whistleblowing for audit committees is available from the Institute ofChartered Accountants for England and Wales (ICAEW) (http://www.icaew.com/en/
technical/legal-and-regulatory/information-law-and-guidance/whistleblowing).
25. See for example the United Kingdom’s Bribery Act, 2010.

Explanatory memorandum ► Page 37

else who may come across serious wrongdoing in that workplace or in any
other. As a result, it is necessary to ban any retaliation, whether it is active inthe form of disciplinary action or termination of employment, or passive, as
in a refusal to promote or provide training.

79. It is clear that the forms of retaliation will vary depending on the specifc
legal status of the whistleblower (or rather on the legal nature of his or her
work-based relationship). As an example, a person who is not paid (a volunteer)cannot sufer retaliation in the form of a reduction in wages, a deduction fromwages or with the loss of promotion opportunities. Retaliation, in this case, ismore likely to take the form of no longer making use of the volunteer’s services,
or of giving a negative reference for future employment or otherwise damaging the person’s reputation. A temporary worker cannot expect to secure apermanent contract of employment as compensation for retaliation. However,in cases where a person’s contract includes a future option for an indefnite
employment contract (for example, a person on probation or a trainee), denialof this option in the case of whistleblowing would constitute retaliation forthe purposes of the recommendation.
80. When retaliation against an individual is recommended, threatened
or attempted by the whistleblower’s employer, such actions can also have achilling efect on the whistleblower who may, as a result, be discouraged fromproperly raising the issue with a regulator and on any others who are awareof the problem. Thus, the prohibition against retaliation should cover suchactions as well, particularly as this will help to guard against those in positionsof authority (i.e. managers) from turning a blind eye as to why subordinates
are targeting an individual for such an action.

81. The recommendation does not specify any time period within which
the detriment sufered by the whistleblower should take place after the dateof the public interest report or disclosure for it to constitute retaliation forthe purposes of the recommendation. Clearly, the longer the lapse of time
between the detriment and the whistleblowing, the more difcult it will beto establish a causal link between them. It is for member States to consider
the appropriateness of fxing such a time frame.
82. Moreover, the recommendation does not indicate the form of protectionthat should be ofered to the whistleblower. This is left for member States todetermine in accordance with the general legal principles of their legal systems. See the explanation in Principle 26 below.

Protection of whistleblowers ► Page 38

83. The term “retaliation” is employed expressly in the recommendation.
It conveys exactly the close (cause and efect) relationship that must exist
between the report or disclosure and the sanction that has been inficted on
the person who has made it in order that he or she can enjoy legal protection.
84. Moreover, Principle 21 makes reference to both direct and indirect retaliation. Examples of indirect retaliation would include, for example, actions taken
against the whistleblowers’ family members.
Principle 22

85. Research shows that individuals raise concerns not only when wrongdoing
has already occurred and damage has already been done but also, and more
often, in order to avert further harm and damage.26 Even where an individual
may have grounds to believe that there is a problem which could be serious,
they are rarely in a position to know the full picture. It is inevitable, therefore,
in both situations that the subsequent investigation of the report or disclosure
may show the whistleblower to have been mistaken. Principle 22 makes it
clear that protection should not be lost in such circumstances. Moreover, theprinciple has been drafted in such a way as to preclude either the motive of
the whistleblower in making the report or disclosure or of his or her good faithin so doing as being relevant to the question of whether or not the whistleblower is to be protected. Principle 10 protects the position of anyone whosufers loss or injury as a result of someone who deliberately and knowingly
reports or discloses false information. Also, a person who makes such reports
or disclosures should not be protected by the law.
Principle 23
86. Principle 23 acknowledges that action taken outside the workplace canundermine an individual’s protection for reporting or disclosing information
as intended in this recommendation. Thus it is important for member States toensure that a whistleblower is entitled to rely, as a procedural right, on having
made a disclosure in accordance with the national framework as a defence toproceedings or as a release from liability under civil, criminal or administrativelaw.
26. See research into 1 000 cases from the confdential advice line of Public Concern at Work
(United Kingdom) http://www.pcaw.org.uk/whistleblowing-the-inside-story and note 23
for further information.

Explanatory memorandum ► Page 39

Principle 24
87. Principle 24 refers to the situation where an employer has put in place
an internal reporting system in order to react positively to reports of threatsor harm to the public interest and to provide reassurance that it is safe andacceptable to use this system. In a case where an employee makes a disclosure
to the public and having regard to the European Court of Human Rights caselaw, the normative framework may recognise the legal value of an expectation
to use the internal reporting system as one of the factors in determining theappropriate remedy or level of protection aforded to the whistleblower for
any reprisal or action taken or threatened against him or her for making thedisclosure. However, the principle does not permit an employer to abuse theobligation to use the system or to rely upon it to dismiss the employee.
Principle 25
88. Principle 25 places the burden of proof for any detriment inficted byan employer against the interests of the individual who made the report ordisclosure in the public interest on the employer. Once an employee demonstrates a prima facie case that he or she made a public interest report ordisclosure and sufered a detriment, the burden shifts onto the employer,
who must then prove that any such action was fair and not linked in any way
to the whistleblowing. A similar approach is taken in anti-discrimination law
in some member States.
Principle 26
89. The recommendation makes no reference to the remedies that should
be available for a whistleblower who has sufered retaliation. In most cases
the appropriate remedy will be determined by the kind of retaliation thathas been sufered. Time is, however, a key factor in ensuring adequate andappropriate protection for the whistleblower. The recommendation makes
an explicit reference to the need for interim remedies to be available pending the resolution of legal proceedings that can be protracted. These could
be in the form of a provisional measure ordered by a court to stop threats orcontinuing acts of retaliation, such as workplace bullying or physical intimidation, or prevent forms of retaliation that might be difcult to reverse after thelapse of lengthy periods, such as dismissal. Principle 26 also covers the interim
remedies available to non-judicial bodies. Public regulatory bodies might also
be empowered to take temporary measures to protect the whistleblower. The

Protection of whistleblowers ► Page 40

principle does not imply the creation of a State fund to make payments towhistleblowers.
90. In some jurisdictions compensation is provided for economic losses,
particularly in the case of dismissal, as well as damages for any injuries orsufering. The types of remedy will vary between legal systems but the goal
should be to provide as full a remedy as is possible. It should also be recognised that it may be difcult or detrimental for a whistleblower to return to thesame workplace and that where a transfer is possible such an option should
be available.

Advice, awareness and assessment
Principle 27
91. The law on protecting whistleblowers and what it means in practice needs
to be promoted across all sectors. The value of whistleblowing in detecting
and deterring corruption, preventing wrongdoing and minimising serious
risk to people or the environment, will not be recognised if the purpose andapplication of the law is not properly understood or promoted. Employers
need to understand what will and can happen if they victimise or fail to deal
with reprisals taken against a whistleblower and fail to investigate a report ofwrongdoing or serious risk. In such circumstances, there is clearly a risk thatthe wrongdoing or problem will cause greater damage or harm, and that thewhistleblower will have a strong claim against the employer and be protectedin law for making a disclosure in the public domain. Importantly, employers
need to understand why it is in their best interests to encourage those whowork for them to report concerns about wrongdoing or risk of harm earlyenough and to make it safe for them to do so.

92. It is important to train judges and other decision makers, particularly
those receiving and handling public interest reports and disclosures, on thedetail of the law and, more importantly, on its public interest aim.
Principle 28

93. Access to confdential advice for individuals who have come acrosswrongdoing or risk in the workplace is very important. Such advice helps
ensure that the information gets to the right person or body at the right timeand helps protect the whistleblower and assists the employer and the public
by ensuring the report or disclosure is made responsibly. Such advice can beprovided by trade unions, independent lawyers or other bodies.

Explanatory memorandum ► Page 41

Principle 29

94. As with any legal initiative, how it works in practice may not be as
expected. Moreover, as the law is implemented and the mechanisms forwhistleblowing are used, more will be learned about what works and what
does not. Experience shows that whistleblower protection evolves over time,in law and in practice, and that it is very sensible and important to review it
regularly to determine what aspects need to be strengthened. Periodic reviewsin all member States will ensure that the system works in the public interestand that there is public confdence and trust in it.

Protection of whistleblowers ► Page 42

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Recommendation CM/Rec(2014)7 on theprotection of whistleblowers encourages
member states of the Council of Europe to havein place a normative, institutional and judicial
framework that protects the rights and interestsof individuals who, in the context of their workbased relationship, report or disclose informationon threats or harm to the public interest. A seriesof principles is set out in the appendix to therecommendation to guide member states whenintroducing legislation and regulations or, whererequired, making amendments.

PREMS 120914

ENG
The Council of Europe is the continent’s leading
human rights organisation. It comprises 47 member
states, 28 of which are members of the European
Union. All Council of Europe member states havesigned up to the European Convention on Human
Rights, a treaty designed to protect human rights,
democracy and the rule of law. The European Courtof Human Rights oversees the implementationof the Convention in the member states.

http://book.coe.int
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