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Whistleblowers and Protecting the Source

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Curator: Medha Vikram, Student, B.A., LL.B. (Hons.), National Law University, Delhi

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General Readings

Stephen Martin Kohn, Concepts and Procedures in Whistleblower Laws, Chapter on Legal Principles in Whistleblower Laws, Greenwood Publishing House 2001.

This chapter provides the basic legal principles surrounding protection of whistleblowers in USA.

Richard G Fox, Protecting the Whistleblower, 15 Adel. L. Rev. 137 1993

This article constitutes a basic reading to understand the concept of whistleblowing and the need to afford protection to them in a modern democratic age. It also analyses the laws relating to whistleblower protection in various countries, including USA and Australia.

Paul Latimer & A J Brown, Whistleblower Laws: International Best Practice, 31(3) UNSW Law Journal 766 (2008).

This article provides a detailed overview about the considerations that need to be kept in mind while drafting a whistleblower protection law. It explains the pre-requisites for whistleblower laws and analyses the laws across various jurisdictions. Further it explains the different consideration that need to be put in place for public and private sector employees and the channels of disclosure that need to be implemented. The article concludes that effective whistleblower protections must include access to the normal legal process including trial by jury, protection for the whistleblower and protection of lawful disclosure. There must be no retaliation and there must be effective resolution of the wrongdoing disclosed by the whistleblower. It thus concludes that an effective legislation is the backbone of any proposed whistleblower protection.

David Lewis, Whistleblowers and the Law of Defamation: Time for Statutory Privilege?, [2005] 3 Web JCLI

This article is based on the premise that whistleblowers can play a valuable role in modern society. The UK Public Interest Disclosure Act 1998 (PIDA 1998), which only applies to workers and requires that disclosures are made in “good faith”, makes no mention of the law of defamation. This article considers the impact of the law relating to libel and slander on actual and potential whistleblowers. It is observed that those who are not covered by PIDA 1998 are particularly exposed – if they cannot prove the truth of their allegations their motives may be examined in an action for defamation. The author concludes that it would be consistent with the principle of freedom of expression if statutory privileges were introduced and if Parliament removed the requirement of “good faith” for a disclosure to be protected under PIDA 1998.

David Banisar, Whistleblowing: International Standards and Developments, CORRUPTION AND TRANSPARENCY: DEBATING THE FRONTIERS BETWEEN STATE, MARKET AND SOCIETY, I. Sandoval, ed. World Bank-Institute for Social Research (February 1, 2011).

This article discusses the various elements of a definition of whistleblowing and brings out the notion of whistleblowing as an element of free speech and the right of individuals to express dissent. It then goes on to discuss the utility of whistleblowing and the barriers to the same. In order to analyze the international position on whistleblower protection, the article discusses the various international conventions that relate to it, including the UN Convention against Corruption and the UN Special Rapporteur on Freedom of Expression. The article also analyzes the national laws on whistleblowing from USA, Canada, New Zealand and South Africa.

Josh Halliday, Journalists’ employers must protect sources, says Lords committee chair, The Guardian Media, February 16, 2012

Lord Inglewood speaks out on row over News Corp passing information on Sun reporters’ confidential sources to police. He states that a proper employee is expected to protect the acts of a responsible journalist and his sources. It was important for the future of responsible investigative journalism that journalists are able to offer adequate protection to their sources.

Dan Sabbagh, April Casburn verdict sends out mixed signals, The Guardian Media, January 10, 2013.

This case involving selling information about Met police probe into phone hacking raises questions for would-be whistleblowers. These include the question about who can be classified as a whistleblower and under what circumstances they can be forced to reveal their source.

Shailey Tucker, Whistleblowers: Whose Protection?, The Accountability Initiative, 2 August 2013 (Last Accessed 10 September 2013).

This article is a comprehensive take on the entire issue pertaining to whistleblowers. It compares the text of laws pertaining to whistleblowing across several jurisdictions including USA, UK, Japan and South Africa. The article concludes that countries such as South Africa, Japan and the UK are more comprehensive in their scope, coverage, and types of protection for whistleblowers, with clearly outlined definitions.

Paul Harris, The Obama administration’s disturbing treatment of whistleblowers, The Guardian, April 11, 2012

This article argues that President Obama has shown a hostility to whistleblowers that exceeds that shown by President Bush. Defenders of Obama’s record on these whistleblowers point to a national security defence. Thus, the article tries to deconstruct this defence and state that whistleblowing and intelligence can exist simultaneously and that the Obama administration has been unduly strict on whistleblowers.

Whistleblower Protection Bill

The Law Commission of India, Report on Public Interest Disclosure and Protection of Informers, 179th Report December 2001.

This Report identifies whistleblowing as an important mechanism to eradicate corruption and compares the position in India to the protection given to whistleblowers under different jurisdictions (UK, EU, New Zealand, Australia, USA). It also analyses the protection to whistleblowers vis-à-vis the freedom of speech, the right to know, and the right to privacy. It also traces the various attempts that had been made to provide protection to whistleblowers in order to eradicate corruption- the Santhanam Committee Report, the Administrative Reforms Committee Report. It then analyses the Public Interest Disclosure (Protection of Informers) Bill, 2002 and makes recommendations regarding the same.

Kaushiki Sanyal, Legislative Brief: The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010, PRS Legislative Research January 24, 2011

This legislative brief captures the highlights of The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. The brief explains the context of the legislation, analyses the key features and the recommendations of the Law Commission of India and the Administrative Reforms Commission. It also provides a brief comparison the proposed Bill with the protection given to whistleblowers across different jurisdictions

Second Administrative Reforms Commission, Ethics in Governance, 4th Report January 2007

Venkatesh Nayak, Whistleblower Bill in India – A case of the right hand not knowing what the left hand has done, Human Rights Initiative August 27, 2010.

This article contains the highlights of the recommendations made by the 2nd Administrative Reforms Commission in its 4th Report. It also critiques the recommendations of the Report.

Parliamentary Standing Committee on Personnel, Public Grievance, Law and Justice, Report on The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010, 46th Report 9 June 2011.

This report provides a detailed view on The Public Interest Disclosure and Protection to Persons Making the Disclosures Bill, 2010. It starts out by tracing the legislative history of the Bill. It then goes on to capture the highlights of the Bill and analyses the major issues identified in the Bill. The Committee has recommended widening the scope of government agencies that would be covered under the scope. It also asks for a better mechanism for receipt and disposal of complaints, protection of identity of the informant and other pertinent issues. The Committee concluded by welcoming the Bill and broadly endorsing its provisions.

Kaushiki Sanyal, The Standing Committee’s Recommendations on the Whistleblower Bill, the PRS Blog, 17 June 2011

This post highlights the key points of the Standing Committee Report on the Whistleblower Bill.

The Hindu, Measures for Fighting Corruption and Ensuring Better Governance Note for discussion on the Loksuraksha Whistleblower Protection Bill

This paper highlights the deficiencies of the Public interest Disclosure and Protection to Persons Making the Disclosure Bill 2010. This paper is an element of the Collective and Concurrent Lokpal Measures for fighting corruption and ensuring better governance. It captures the relevant provisions of the Bill and analyses the issues that arise in respect of the same.

Venkatesh Nayak, Public Interest Disclosure and Protection to Persons Making the Disclosures Act, 2010: An analysis of the amendments introduced by the Government of India in 2011, National Campaign for People’s Right to Information for the purpose of public discussions and debate on the whistleblower protection law.

This article analyses the amendments that have been proposed by the Government of India to the Public interest Disclosure and Protection to Persons Making the Disclosure Bill 2010. The article also provides recommendations in respect to each proposed amendment.

Cabinet to Consider Changes to Whistleblower Bill, The Times of India, July 25, 2013.

This article discusses the proposed amendment to the Whistleblower protection Bill in India. The proposed amendments are qualifications to ban disclosure of information that could compromise the strategic, economic interests including Cabinet papers and deliberations that may impact foreign relations.

S Muralidharan, Why Whistleblower Law doesn’t extend to the Private Sector, First Post, August 7, 2013 (Last Accessed 25 November 2013)

This article discusses a crucial point about how whistleblower protection does not apply to private companies. This may lead to erosion of crucial purposes that the Whistleblower Bill in India has sought to achieve. The author focuses on two main scandals: first, the Enron scandal in the USA and second, the Robert Vadra scandal.

Dhananjay Mahapatra, SC: Can’t tell accused who whistleblower is, The Times of India, August 23, 2013 (Last Accessed August 23, 2013)

This article discusses a recent case where, the Supreme Court has ruled that identity of persons who tip off anti-corruption agencies about corrupt deals of bureaucrats can never be revealed to the accused facing prosecution under Prevention of Corruption Act. This is a welcome move towards the protection of whistleblowers.

Daily News and Analysis, Whistleblowers to Get Protection against Threat to Life, 5 September, 2013 (Last Accessed 10 September, 2013).

This article discusses a recent amendment notified by the government whereby a central government employee, who exposes corruption in his department, would be able to get protection against any threat to his life. A nodal officer has been designated in each central ministry to look into complaints of corruption by whistleblowers.

Rahul Sagar, Who decides whats secret: Obama or Snowden?, CNN, 15 June 2013 (Last Accessed 10 September 2013).

This article addresses the debate about the duty that Edward Snowden had to the NSA and the consequences of his leak. The author argues that Edward Snowden definitely had a duty to protect and keep secret the information that he received as an employee of the NSA. However, such duty could be over-ridden in order to undo heinous wrongs. The questions that needs to be addressed is who has the ability to decide which wrongs justify exposure and which do not.

Editorial, Whistleblowers: Urgent Need for Legislation, Economic and Political Weekly, No. 13, March 31, 2007.

This article discusses the need for a whistleblower protection in India. In particular, it discusses cases where whistleblowers have been targeted and killed due to their role in exposing corruption.

Editorial, Will Truth Prevail, Economic and Political Weekly No.37, September 11, 2010.

This article discusses the Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010. The author states that the moot point with respect to the Bill is how far it will be possible to implement the provisions of the proposed legislation and how far the infrastructure available will support effective implementation. Particularly, the article points out that the Bill does not cover the private sector and is with only central and state governments. Also, any disclosure of corruption made five years after the corrupt act was allegedly done will not be investigated. The author states that this provision is rather baffling and has the potential to encourage fudging of dates and backdating of documents. The author concludes by stating that the Bill needs to be revised so as to make it more effective.

Wikileaks and Julian Assange

Alexander Hotz, What WikiLeaks Means for Journalism and Whistle-Blowers, The Poynter Institute, February 25, 2010

This article discusses an Icelandic legislation which is aimed at increasing protection for sources and whistle-blowers, imposing stricter limits on prior restraint, strengthening process protection and barriers on “libel tourism” and reinventing the Icelandic Freedom of Information Act. The movement has been led by WikiLeaks. The article analyses the consequences of this legislation.

Stephen Moss, Julian Assange: The Whistleblower, The Guardian Media, July 14, 2010

This article contains excerpts of an interview with Julian Assange. In this interview, Assange expresses his view on the change in the nature of journalism, the importance of exposing facts and protection of the sources.

Samantha Mangwana, Whistleblowers: Is a Change in Law Enough to Protect them and us?, The Independent (UK), July 3, 2013 (Last Accessed 26 August, 2013).

This article discusses the provisions of the latest legislation for the protection of whistleblowers. It conducts a comparison between the new legislation and the previous legislation. The author goes on to state that mere passing of a new legislation is not sufficient- there is a need to conduct effective public inquiries into the alleged scandals. The author concludes by stating that there is a need to end the culture of silence that exists in the present scenario.

Paul Vallely, Heroes and Villians- A Modern Definition, The Independent, 25 August, 2013 (Last Accessed 26 August, 2013).

This article discusses the cases of eminent whistleblowers- Edward Snowden, Bradley Manning and David Miranda. The author analyses why Manning was given such a harsh sentence. Particularly, the author raises a valid question- why a whistleblower was given 35 years when the offenders whose wrongs she disclosed are still unprosecuted, and even feted as hero war veterans.

Jim Romnesko, Columbia j-school staff: WikiLeaks prosecution ‘will set a dangerous precedent’, The Poynter Institute, December 16, 2010.

Columbia University Graduate School of Journalism faculty and officers tell President Obama and Attorney General Eric Holder that “while we hold varying opinions of Wikileaks’ methods and decisions, we all believe that in publishing diplomatic cables Wikileaks is engaging in journalistic activity protected by the First Amendment” and that “as a historical matter, government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves.”

Edward Snowden

Thomas Ricks, The differences between whistleblowing Edward Snowden and Bradley Manning — and some similarities to Daniel Ellsberg, Foreign Policy, June 10, 2013 (Last Accessed August 12, 2013)

This article compares the position of Edward Snowden vis-a-vis another prominent whistleblower, Bradley Manning. The author is critical of Bradley Manning’s disclosre- he is of the opinion that Manning failed to properly analyse the information that he revealed. On the other hand, he states that Snowden has been much more sensible while determining the nature of information that he released.

Daniel Ellsberg, Edward Snowden Is a Hero and We Need More Whistleblowers, The Daily Beast, June 10, 2013.

In this article, Daniel Ellsberg, who leaked the Pentagon Papers in 1971, says that the machinery of the American democratic government is broken—and there is a need of whistleblowers like Bradley Manning and Edward Snowden to inspire Americans to fight back against this invasion of privacy. Snowden’s whistleblowing gives us a chance to roll back what is tantamount to an ‘executive coup’ against the US constitution.

Adam Cohen, Edward Snowden: A Modern-Day Daniel Ellsberg, Except for One Key Difference, Time Magazine, June 10, 2013.

This article analyses the situation of Edward Snowden vis-à-vis Daniel Ellsberg. It identifies one major difference between the position of Snowden and Ellsberg: The Pentagon Papers revealed that the government had ramped up the war in Vietnam and lied to Congress and the public about it, which is clearly wrong. But in Snowden’s case, it’s still unclear whether the NSA’s spying was in fact legal and if what Snowden did was simply leak classified information because he objects to how the government has chosen to defend national security. The article concludes by stating that the status of Snowden as a heroic whistleblower will greatly depend on the balance between the apparent threat to national security and the danger of the USA becoming a surveillance state.

Emily Bazelon, Is Edward Snowden a Traitor?, Slate, June 11, 2013.

This article examines the argument that Edward Snowden is not a genuine whistle-blower. The basis of this argument is that if one divulges classified information to expose the government and one doesn’t reveal a clear legal violation, under current law they are not considered as a whistleblower. The federal Whistleblower Protection Act, passed in 1989, was written to shield government employees who reveal fraud and other wrongdoing. But it is riddled with exceptions. There is no protection so employees of the NSA or CIA. Snowden misses on protection on two counts: He seems to have exposed no actual crimes, and he worked for the NSA.

Jack Schaefer, Edward Snowden and the selective targeting of leaks, June 11, 2013.

This article brings out the hypocrisy that is shown by governments in determining whether a leak is done for a political purpose or a heretic purpose. He likens the acts of Edward Snowden with that of Daniel Ellsberg and Bradely Manning. The article concludes that the willingness of the government to punish leakers is inversely proportional to the leakers’ rank and status, which is bad news for someone so lacking in those attributes as Edward Snowden. But as the Snowden prosecution commences, a need has arisen to question his selective prosecution.

Andrew Beaujon, Greenwald: Snowden’s salary ‘didn’t really strike me as a central part of the story’, The Poynter Institute, June 12, 2013.

Booze Allen Hamilton, the company which Edward Snowden worked for has release

d that Snowden earned $ 122,000 a year. The Guardian’s Glen Greenwald stated that Snowden’s salary would not play a crucial part in his role as a whistleblower.

Edward Snowden: In Defence of Whistleblowers, Editorial, The Guardian, June 25, 2013

This editorial discusses the fate of Edward Snowden under American law as he would be charged with offences under the Espionage Act.

Edward Snowden: A whistleblower, not a Spy, Editorial, The Guardian, July 2, 2013

This article address the classic dilemma about whether Snowden can be regarded as a whistleblower and get protection accordingly. The article draws parallels to other noted whistleblowers, including Daniel Ellsberg.

Eric Deggans, Snowden’s leaks force media self-examination, The Poynter Institute, July 3, 2013.

Besides forcing government and national-security institutions to face the public about their spying efforts, Edward Snowden’s decision to release information on America’s massive public surveillance efforts has thrown another system into a flurry of self-examination: Snowden’s leaks raises the question of who actually qualifies as a journalist.

Joshua Gillin, Greenwald criticizes NSA director, says Snowden could be government’s ‘worst nightmare’, The Poynter Institute, July 15, 2013.

The Guardian’s Glen Greenwald has criticized the NSA Director Keith Alexander on his approach of collecting the whole haystack while gathering intelligence on the citizens of the United States. It was noted that noted former NSA whistleblower Thomas Drake said that “the continuation of Alexander’s policies … would result in the ‘complete evisceration of civil liberties.’”

Chris Elliot, The Guardian’s Duty of Care towards Edward Snowden, The Guardian Media, August 4, 2013.

In light of Bradley Manning being held guilty on 20 out of 22 charges framed against him, this article asserts that the Guardian has a duty of care towards Edward Snowden. It accepts that news organizations rely on brave people to break ranks and tell all, but no editor can give a whistleblower a cast-iron guarantee. No editor can give a whistleblower a cast-iron guarantee. The most important issue in the relationship is to act honestly and fairly, taking every step to ensure that he or she has the best understanding of the consequences of his or her actions

Srinivasan Ramani & Stanly Johny, Whistle-blowing in the Wind, Economic and Political Weekly Vol No 28, July 13, 2013.

This article discusses the issue of grant of asylum to Edward Snowden. The author concludes that only the small nations of Latin America, committed to “Socialism of the 21st century”, stand up to the might of the United States, by offering to provide asylum to Edward Snowden. The rest of the world’s state establishments will show their inability to defy the US despite great sympathy for Snowden among their citizens.

Michael German, Edward Snowden is a Whistleblower, American Civil Liberties Union, 1 August, 2013

This article discusses the issue about whether Edward Snowden can be classified as a whistleblower. It also touches upon the issue of public interest involved in the disclosure by Snowden.

Eyal Press, Whistleblower, Leaker, Traitor, Spy, The New York Review of Books, August 5, 2013

This article discusses whether Edward Snowden can be labeled as a ‘whistleblower’ and thereby be entitled to protection. The article explains that identifying someone as a whistleblower portrays them in a positive way, as the person who exposes wrongdoing. However, a problem arises when the information leaked is something that is believed to be wrong, but not conclusively proved to be wrong, as is in Snowden’s case.

Bradley Manning

Glenn Greenwald, Bradley Manning Deserves a Medal, The Guardian, December 14, 2011

This article argues that the prosecution of the whistleblower and alleged WikiLeaks source Bradley Manning is an exercise in intimidation, not justice. By contrast, the leaks Manning allegedly engineered have generated enormous benefits: precisely the benefits Manning, if the allegations against him are true, sought to achieve. In sum, the documents Manning is alleged to have released revealed overwhelming deceit, corruption and illegality by the world’s most powerful political actors. And this is why he has been so harshly treated and punished

Trevor Timm, Bradley Manning’s trial threatens the right of all future whistleblowers, Al Jazeera, June 3, 2013.

This article argues that the trial of Bradley Manning poses a serious threat to all future whistleblowers. Particularly, the article attacks the charge of ‘aiding the enemy’ that has been leveled against Manning. It concludes by stating that even if one does not support Manning’s actions, they should nevertheless oppose his prosecution as it leaves whistleblowers without any protection.

Daniel Ellsberg, A Salute to Bradley Manning, Whistleblower, As We Hear His Words for the First Time, The Huffington Post, March 12, 2013.

This post by the Pentagon papers whistleblower criticizes the manner in which the trial of Bradley Manning was conducted- the trail transcripts were not made public and Manning was never given a chance to publicly explain his actions. The post also defends Manning actions of releasing all data without discrimination- the data he released was unclassified and ‘secret’ which are relatively low levels of security. Ellsberg also criticizes Manning being charged with the offense of ‘aiding the enemy’ as an excessive reaction by the State.

Ed Pilkington, Bradley Manning: whistleblower or traitor?, The Guardian, July 30, 2013

The article discusses the verdict in the Bradley Manning trial, which has led to two starkly contrasting portrayals of Manning. The two starkly contrasting portrayals of a single man – whistleblower versus traitor – set up an epic ideological and legal battle that goes to the heart of the issue of official leaks in the digital age. When hundreds of thousands of documents can be downloaded and transmitted to a website in a matter of minutes, what does the act of leaking now signify? And how should the system deal with it?

Andrew Beaujon, Did the media drop the ball on the Bradley Manning trial?, The Poynter Institute, July 31, 2013.

This article criticizes the attitude of the US Media in the coverage of the trial of Bradley Manning, who was found guilty of 20 charges related to his leaks of classified information to Wikileaks.

Andy Sellars, Extend First Amendment to Whistleblowers, The DW, August 1, 2013.

This article argues that in the Internet age the old protection of whistleblowers via traditional media is insufficient to shield them from excessive prosecution. Hence, the First Amendment protection must be extended to whistleblowers.

Dana Milbank, The price Gina Gray paid for whistleblowing, The Washington Post, August 21, 2013 (Last Accessed August 23, 2013)

This article discusses the statement made by the Obama administration about how whistleblowers must use the formal channels of communication if they wish to be protected. The author argues that this statement is unfair as when formal channels are used, the whistleblowers are harassed, fired and prosecuted. Particularly, the article discusses the case of Gina Gray, a whistleblower in the Defence Department who had used such formal means of communication and suffered harsh consequences.

John Kiriakou, Obama’s Abuse of the Espionage Act is Modern Day Mc Carthyism, The Guardian Media, August 6, 2013.

This article argues that the conviction of Bradley Manning under the 1917 Espionage Act, and the US Justice Department’s decision to file espionage charges against NSA whistleblower Edward Snowden under the same act, are yet further examples of the Obama administration’s policy of using an iron fist against human rights and civil liberties activists.

Articles Pertaining to other Whistleblowers

Jane Mayer, The Secret Sharer, The New Yorker, 23 May, 2011 (Last Accessed 1 September, 2013).

Thomas Drake had grave doubts about the NSA’s use of domestic surveillance. Drake, then a senior executive at the NSA, revealed information to The Baltimore Sun and was ultimately indicted under the Espionage Act. This article uses Drake’s story as a lens to explore the larger issues of warrantless surveillance in post–9/11 America.

John D. O’Connor, “I’m the Guy they called Deep Throat”, Vanity Fair, July 2005.

Despite three decades of intense speculation, the identity of “Deep Throat”—the source who leaked key details of Nixon’s Watergate cover-up to Washington Post reporters Bob Woodward and Carl Bernstein—had never been revealed. However, at age 91, W. Mark Felt, number two at the F.B.I. in the early 70s, finally admitted to that historic, anonymous role. This article puts a name and face to Mark Felt, one of American democracy’s heroes.

Pamela Collof, The Whistleblower, The Texas Monthly, April, 2003 (Last Accessed 1 September, 2013).

This article is a profile of the Enron whistleblower, Sherron Watkins. The article is a narrative of what life is like for a whistleblower who, despite being nationally-lauded, still finds herself rejected by the high-rolling Houston society set to which she once belonged.

Cory Kilgannon, Serpico on Serpico, The New York Times, 22 January, 2010 (Last Accessed 1 September, 2013).

This article is a profile of Frank Serpico, the honest cop who exposed NYPD corruption. Bearded, bitter, and in his early seventies, Serpico lives a monastic life along the Hudson, just a few hours north of his former city. The article outlines the difficulties faced by him in his path as a righteous police officer and the steps taken by him to protect himself after the exposure.

Laurie Abraham, Anatomy of a Whistleblower, Mother Jones, January/February, 2004 (Last Accessed September, 2013).

Jesselyn Radack was a “Lifetime TV writer’s dream”—the mother of two young children and pregnant with her third who had privately struggled with MS since college. She was a government lawyer with the Justice Department’s ethics unit when a colleague asked her to look over the FBI’s interrogation of the John Walker Lindh, the “American Taliban” captured during the 2001 invasion of Afghanistan. She spoke up about the impropriety of Lindh’s being questioned without a lawyer present, and quickly became emblematic of the Ashcroft-era treatment of whistleblowers, her life turned upside-down. And then she did the most unlikely thing of all—became an activist for whistleblowers across the nation. She is currently the National Security & Human Rights Director of the Government Accountability Project. This article details the struggle that she had to go through due to the lack of sufficient whistleblower protection laws.

Comparative and International Material

Rahul Sagar, Secrets and Leaks: The Dilemma of State Secrecy, Princeton University Press 2013.

Secrets and Leaks examines the complex relationships among executive power, national security, and secrecy. State secrecy is vital for national security, but it can also be used to conceal wrongdoing. How then can we ensure that this power is used responsibly? Typically, the onus is put on lawmakers and judges, who are expected to oversee the executive. Yet because these actors lack access to the relevant information and the ability to determine the harm likely to be caused by its disclosure, they often defer to the executive’s claims about the need for secrecy. As a result, potential abuses are more often exposed by unauthorized disclosures published in the press.

But should such disclosures, which violate the law, be condoned? Drawing on several cases, Rahul Sagar argues that though whistleblowing can be morally justified, the fear of retaliation usually prompts officials to act anonymously–that is, to “leak” information. As a result, it becomes difficult for the public to discern when an unauthorized disclosure is intended to further partisan interests. Because such disclosures are the only credible means of checking the executive, Sagar writes, they must be tolerated. However, the public should treat such disclosures skeptically and subject irresponsible journalism to concerted criticism.

Indira Carr, The UK Bribery Act: Business Integrity and Whistleblowers, 4 Financial Fraud Law Report 361 (2012).

This article’s main focus is the extent to which the UK Bribery Act, 2010 and the Guidance Document prepared by the Secretary of State, addressing the procedures that commercial organizations can put into place to prevent bribery, include whistleblower protection. The article also examines provisions for whistleblower protection in the four anti-corruption conventions that the UK has ratified in order to provide a context for a discussion of whistleblower protection in the Bribery Act and the Guidance Document.

Gerard Sinzdak, An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to

Reporting Requirements, 96(6) California Law Review 1633-1668 (Dec 2008).

This Comment analyzes the arguments both for and against strict report recipient requirements. This analysis reveals that neither an external nor an internal report recipient requirement provides sufficient protection to whistleblowing employees, who face a very real threat of retaliation. Studies indicate that whistleblowers choose their report recipient based on a wide variety of practical considerations-including the employee’s status in an organization, the status of the wrongdoer, the organization’s culture, and the significance of the wrongdoing.10 A rigid report recipient requirement whether external or internal-cannot match the diversity of situations in which employees find themselves. An unduly restrictive reporting requirement therefore inevitably leaves many good-faith whistleblowers unprotected. In order to avoid unjust denials of protection, this Comment proposes that states adopt a more open-ended report recipient standard. More specifically, states should provide protection to employees who report either internally to a supervisor or externally to a government body so long as the employee possessed both a subjectively and objectively reasonable belief that the recipient could correct the employer’s unlawful behavior

Terry Morehead Dworkin, SOX and Whistleblowing, 105(8) Michigan Law Review 1757-80 The Louis & Myrtle Moskowitz Conference on the Impact of Sarbanes-Oxley on Doing Business (Jun., 2007).

The language of the Sarbanes-Oxley Act (“SOX”) 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, establishing criminal penalties for retaliation against whistleblowers, and clearly defining whistleblowing channels. Unfortunately, these provisions give the illusion of protection for whistleblowers without effectively providing it. There is increasing evidence that virtually no whistleblower who has suffered retaliation and pursued remedies under SOX has been successful. Additionally, social science research and studies of whistleblowing laws indicate that SOX is unlikely to increase reports. This Article compares the SOX whistleblowing provisions with other state and federal whistleblowing statutes, discusses the shortcomings of the SOX provisions, and explains why SOX needs to be revised in order to help ensure the integrity of the markets. Recommended revisions include significantly rewarding whistleblowers that come forward with novel and relevant information. Experience with the False Claims Act and equivalent state statutes show such incentive legislation to be the only truly effective legislative model. The Article goes on to discuss various ways to create an incentive reward fund. While some of the current law as well as some of the suggested revisions potentially put SOX in conflict with privacy and whistleblowing laws of European countries, the conflicts can be eliminated through judicious use of exemptions and/or through judicial interpretation.

Brian Martin, Illusions of Whistleblower Protection, 5 UTS Law Review 119 (2003)

This article premises thay official channels do not work very well and cannot be expected to provide sound whistleblower protection. It thus suggests that a much more productive approach is to promote the development of understanding and practical skills for survival in organizations. The implication is that official channels provide an illusion of protection and distract attention from much more effective avenues for intervention. Other official channels to protect whistleblowers include hotlines, auditors-general, ombudsmen and courts.

Jenny Mendelsohn, Calling the Boss or Calling the Press: A comparison of Briitish and American Responses to Internal and External Whistleblowing., 8 Wash. U. Global Stud. L. Rev. 723 (2009).

The article begins by analysing the fundamental difference between the American and British whistleblower protection laws. The American system gives greater protection to external reports, while the British system fiercely protects internal reports. The article argues that there need not be “one right path.” Rather, a model whistleblower protection law would not heavily favor either external or internal reporting: it would offer protection to both types of reports in certain instances.

Reuben Guttman, Whistleblowers tuning in to foreign cases, The Europena Lawyer (2012).

This article outlines key provisions of the US Dodd-Frank Wall Street Reform and Consumer Protection Act 2010 which reward whistleblowers who reveal examples of corporate bribery, the territorial scope of the measures and the implications for multinationals.

John Bowers and Jeremy Lewis, Whistleblowing: freedom of expression in the workplace, 6 European Human Rights Law Review 637-648 (1996).

This article assesses the scope of protection which employee whistleblowers can expect to receive under the European Convention. Particularly, it discusses whether Art.10 ECHR gives protection to an employee who raises complaint or matter of concern over employer’s practices. The authors argue that despite some fine rhetoric emanating from the European Court of Human Rights the whistleblower cannot yet be confident of receiving assistance from Strasbourg.

Indira Carr & David Lewis, Combating Corruption through Employment Law and Whistleblower Protection, Ind Law J (2010) 39 (1) 52-81. (Need to Access the Oxford Industrial Law Journal)

This article examines the extent to which employment law has the potential to fight corruption by imposing rights and duties on employers and workers and analyses the extent to which the UN Convention on Corruption 2003 (UNCAC) protects those who speak out about malpractices within an organisation. Section 2 focuses on UNCAC while Section 3 focuses on the extent to which employment law imposes obligations on those within the workplace to report corrupt activities and the circumstances in which those who speak out about corruption are protected under UK employment law. It is argued that because of the inadequacies of the existing legislation and the threat posed by disclosures via the Internet, organisations have much to gain from devising effective policies on both internal and external reporting that do not inhibit the exposure of corruption or unnecessarily curtail freedom of speech. The authors conclude by welcoming the draft recommendations from the Council of Europe’s Parliamentary Assembly to draw up a set of guidelines for the protection of whistleblowers and consider drafting a framework convention.

PROTECTION OF SOURCE

Who is a Journalist?

Andrew Beaujon, NJ Judge Revives Blogger v. Journalist Debate, Poynter Institute, Feb 5 2013 (Last Accessed 19 September 2013).

This article discusses a case before the Union County Judge of New Jersey, which dealt with whether a blogger would get the right to protect her sources, just like the protection that is extended to journalists. The judge concluded that the blogger would get protection as the information that she shared was in public interest.

Ellyn Angelotti, Debate about Crystal Cox Misses a key legal point, Poynter Institute, December 12 2011 (Last Accessed 19 September 2013).

This article discusses the decision of a federal judge in Oregon who ruled that Crystal Cox, a blogger who was sued for defamation after she accused the founder of an investment group of acting illegally and unethically, cannot claim protections afforded to journalists under state shield laws. In his ruling, the judge noted that Ms. Cox was not affiliated with a “newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system.

Press Laws Guide: Protection of Sources, The Hoot (Last Accessed August 14, 2013)

This post is in the form of questions and answers. The questions raised cover the laws that relate to protection of sources of journalists in India, the right to refuse to divulge the source and the guidelines for the Court to follow in matters relating to the same.

Manoj Mitta, No legal cover for journalists refusing to divulge source, The Times of India, April 2, 2012 (Last Accessed August 14, 2013).

This article addresses the vacuum that exists in Indian law with respect to protection of journalistic sources. It discusses the attitude of some High Courts while dealing with cases relating to protection of sources and the application of the Press Council Act. It also provides a glimpse into the laws in other countries with respect to protection of journalistic sources.

Devna Arora, Do we need a privileged status for journalist’s sources, The Live Wire, February 4, 2013 (Last Accessed August 14, 2013).

The press performs the vital function of keeping the public informed. Reliance is placed by journalists on confidential sources for such information. This comment analyzes whether a reporter can be directed in the interest of justice to disclose the source of information or should he further claim journalistic privilege as a defense.

David Banisar, SILENCING SOURCES: An International Survey of Protections and Threats to Journalists’ Sources, Privacy International (Last Accessed August 14, 2013)

This report reviews the laws and practices in nations relating to protection of journalists’ sources around the world.

The first section of this report discusses by topic the areas of relevance relating to protection of sources and how they are reflected in legislation, starting with international standards and  concluding with domestic practices and issues of special concern such as national security, surveillance and defamation ,

The second section examines by region the situation and the challengesthat journalists face.

Several examples and cases will be presented to illustrate the current situation in the different regions.

Finally, based on the collected information, guidelines based on the best laws and practices are included. These can be used when considering new laws and re-examining and amending existing legislation in countries on the protection of sources.

Matthew Cooper, Why a Media-Shield Law Isn’t Enough to Save Journalists, The Atlantic, May 29, 2013 (Last Accessed on August 14, 2013).

This article argues that a law will not be useful in protecting journalists’ sources. The rationale behind this argument is that protection of sources is an area where custom carries more weight than statute, the custom being the general good sense of prosecutors not to go after reporters for their information.

Stephen Pritchard, The Reader’s editor on protecting journalists’ sources, The Guardian, June 2, 2013 (Last Accessed August 15, 2013).

This article raises the concern that the fundamental tenet of protection of journalistic sources Is threatened by technology and is undermining the public’s right to know. This is because the source protection for the journalist depends on his ability to keep the source confidential. However, with ever-increasing intervention of the government into private communication, keeping such sources confidential is proving to be extremely difficult.

Yulia Ponomareva, MPs propose bill to protect journalists, The Russia and India Report, July 23, 2013 (Last Accessed August 14,2013).

This article discusses the latest Bill in Russia to protect Journalists and their sources. If the bill becomes a law, the punishment for violence against a journalist will be the same as that for violence against a public official. The maximum penalty for non-life-threatening violence and threats of violence against a journalist (motivated by his/her professional activities) or his/her relatives will be five years in prison. In addition, acts of life-threatening violence could bring a 10-year prison sentence.

Taylor Miller Thomas, Changes to Hawaii’s shield law ‘ignorant of what’s going on in the media world’, The Poynter Institute, April 12, 2013 (Last Accessed August 16, 2013).

This article discusses a proposed Hawaii law that would limit the use of anonymous sources and would remove protections on other reporting done by journalists. The law, now passed by the state’s House and Senate and awaiting conference committee, would limit the ability of Hawaii journalists to report on some important or high-stakes stories. The effect of this law would be that there would virtually be no shield law.

Eoin Carolan, The implications of media fragmentation and contemporary democratic discourse for “journalistic privilege” and the protection of sources, The Irish Jurist (2013).

This article examines two Irish High Court judgments on the scope of the journalistic privilege against orders requiring the disclosure of confidential sources: (1) Cornec v Morris on whether a journalist could be made to give testimony confirming that he received information from the plaintiff in breach of a contractual non-disparagement clause; and (2) Walsh v News Group Newspapers on whether privilege applied to protect documents held by the defendant that confirmed the plaintiff’s suspicion that a person who made a false allegation of sexual assault against him had been paid by a journalist.

Janice Brabyn, Protection against Judicially Compelled Disclosure of the Identity of News Gatherers’ Confidential Sources in Common Law Jurisdictions, 69(6) The Modern Law Review 895-934 (2006).

In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources. Often the struggles are epic. Often the public interest in effective news gathering fuelling the vitality of a modern liberal democracy is insufficiently recognised. The article uses recent cases to spotlight the shortfalls in the approach and legacy of the common law in dealing with news gatherer/confidential source relationships. Post Human Rights Act English decisions, especially that of Tugendhat J in Ackroyd, combining European style commitment to the public interest in vigorous newsgathering with common law style analysis of evidence, point the way to a more effective approach. US and Hong Kong cases remind news gatherers of their public interest responsibilities.

A G Noorani, The Constitution and Journalists Sources, Economic and Political Weekly, No. 27-28, July 28, 2006.

This article discusses the US Free Flow of Information Bill that sought to balance the right to protect journalists’ sources with the people’s right to free flow of information and also the state’s duty to administer justice and punish offenders. The author states that this Bill provides India with a good model to work on. The Indian media, in turn, must work together to draft a bill and move the government of India to ensure its enactment in Parliament.

Julian Huppert, We should look at the content of the Snowden files – not the messenger, The Guardian, 3 December 2013

This article discusses how the Select Committee in the UK which is investigating the Edward Snowden leak, has decided to call upon more relevant security officials as witnesses, instead of focusing on the editor of the Guardian. The idea is that a newspaper editor cannot be questioned and tried for the leak of information, when all he did was act as the messenger for the information that was leaked by Edward Snowden.

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