Whistle-blowing is not just necessary, it’s also measurable

Whistle-blowing has been the subject of far-reaching discussions regarding its justification and its legal support. Although there is a range of laws protecting those who blow the whistle, especially in the G20 countries, whistle-blowers are still at risk. Enhancing their protection seems to be a challenge. Examining the issue, political philosophers Manohar Kumar and Daniele Santoro call for better protection backed up by a set of assessments. They reopen the debate through a three-part series of articles.

“Political vigilantism”, “acts of conscience”, “civil disobedience”, “a new form of worker resistance” - there are plenty of ways of referring to whistle-blowing in academic discussions. These discussions tend to situate it within a wider debate on democratic dissent. A recent paper  by political philosophers Daniele Santoro and Manohar Kumar sheds important light on the relatively underexplored topic of whistle-blowing in philosophy. They suggest that whistle-blowing primarily has two functions:
First, it reveals cases of professional misconduct or corruption in companies or institutions. Many instances of misconduct are uncovered thanks to whistle-blowing. A recent example from the first weeks of March 2019 is that of three whistle-blowers accusing Tesla of concealing information about the theft of raw materials and spying on employees1. Second, whistle-blowers can also contribute to combatting government violations of citizens’ rights. A case in point would be the 2013 PRISM  disclosures by Edward Snowden that raised important concerns over citizens’ rights to privacy.2

• 1Rhett Jones, "New Report Gives Us Clearest Picture Yet of Whistleblower Allegations Against Tesla", Gizmodo, 13/03/2019
• 2PRISM is a code name for a program under which the United States National Security Agency (NSA) collects Internet communications from various US Internet companies.

Photo by Ton Zijlstra on Flickr

A risky activity

The stated aim of whistle-blowing places it at odds with corrupting powers, whose interests are served by blocking the flow of information. Corruption thrives on information asymmetry. It is the lack of information, or actual secrecy, surrounding actions that allows corruption to flourish under public ignorance. The whistle-blower stops this game, and akin to a referee, blows the whistle to stop foul play. The disclosure is meant to attract attention to the wrongdoing. It is this aspect of whistle-blowing that puts whistle-blowers at risk of retaliation from their employers. Whistle-blowing is a risky and precarious activity involving substantial dangers to professional and personal reputation, and sometimes even to the life of the whistle-blower. A case in point is the death of the Maltese whistle-blower Daphne Caruana Galizia in October 2017 in a car bomb blast. She was instrumental in investigating the Panama Papers scandals linked to Malta. Her revelations particularly implicated the Maltese Prime Minister and two of his close aides.3

• 3Juliette Garside, "Malta car bomb kills Panama Papers journalist", The Guardian, 16/10/2017

Great Siege Monument and temporal Daphne Caruana Galizia Monument by Continentaleurope - CC BY-SA 4.0

Lack of protection

Given the risks run by whistle-blowers, there is little government recognition of the legitimacy of these actions. Whistle-blowers tend to be isolated figures, except in rare cases where their revelations lead to larger public outcry. They are often left to fight their own battles and find it difficult to enlist wider support in favour of their cause. The cases of Snowden, Assange, or Deltour are well-known, but other whistle-blowers are neither so lucky nor have the resources or the human capital to force people to recognize their plight. In South Korea, Kim Yong-chul, known for the book that exposed massive corruption at Samsung (where he worked for seven years), endured censure and isolation and had to face prosecutors for years. In 2016, in Japan, despite the 2004 legislation enacted to protect whistle-blowers, Masaharu Hamada had to fight for ten years before finally being awarded $ 110 000 after disclosing Olympus corporation’s corruption and subsequently suffering harassment4. It is a rather striking fact that despite the 2010 and 2012 commitments agreed by the G20 countries to protect whistle-blowers, a 2014 report released by Transparency International noted that at least 10 out of 20 countries have failed to provide protection to whistle-blowers.5

A question for democracy 

Things need to change to ensure that whistle-blowers are safe.  Protection is not merely a question of whistle-blowers’ rights, but also a wider question for democracy itself. Whistle-blowers ensure transparency and publicity through disclosures and thus contribute to promoting the public good. Due to their important democratic function, whistle-blowers should not merely be protected but also promoted. 

Although whistle-blowers perform an important public service, not all disclosures will be in the public interest. Espionage or self-interest are the usual allegations levelled against whistle-blowers to discredit their actions.  It is thus necessary to separate public interest disclosures from those with a malicious intent, thereby making a distinction between those who deserve protection and those who do not.  Santoro and Kumar offer a set of assessments that can be used to legitimate « good » disclosures. 

• 4"The Best and Worst Countries for Whistleblowers", The Whistleblower Attorneys, 12/02/2021
• 5There is especially poor whistle-blower protection under the laws of Argentina, Brazil, Germany, India, Indonesia, Italy, Mexico, Russia, Saudi Arabia and Turkey.

Photo by Jon Tyson on Unsplash

Set of assessments

There are many justifications given for whistle-blowing and many may be controversial, but the evaluation needs to be based on criteria accepted by all. Authors Manohar Kumar and Daniele Santoro in their work ‘A Justification of Whistleblowing’ published in the Journal Philosophy and Social Criticism, and further explored in their book ‘Speaking Truth to Power. A Theory of Whistleblowing’, present three conditions that need to be met for  justifiable whistle-blowing: 

The first is considered to be the communicative constraint. Whistle-blowing is a communicative act and therefore the disclosures must be informative to the intended audience and should be adequately backed by evidence.  

The second is driven by the right kind of intent: The rightness of intent is an important component for the justification of whistleblowing. Assessment of intent is complicated. Kumar and Santoro offer a test which they call the ‘Harm Test’ as a proxy for the assessment of intent. They argue that if the potential risk from blowing the whistle is higher than the estimated benefit the whistle-blower derives from it then the act can be considered to be performed with the right intent. 

A trade-off that is negative could be acceptable. However, this test is not sufficient: it may not be efficient due to issues of targeting or lack of independence. Sometimes there is a high risk of exposure without likelihood of gain. Even when personal interests are not involved, it could be in the interests of a particular group only, as for instance in the case of espionage. The harm test cannot be used as an independent criterion, and a third check is required. 

According to the third criterion, whistleblowing is justified when the information is potentially beneficial for the public i.e. the information is in the public interest. The version of public interest they offer is not merely what constitutes the interests of the public but also is presumably in their interests in the near future. This would constitute the whole gamut of civil and political rights which are a precondition for enjoyment of other rights and benefits. It is thus important for citizens to be aware when their basic civil-political rights are under threat or when the arrangement that supervises (i.e. democratic institutions) their application is compromised. 

These criteria are meant to enable the state, citizens, and public at large to assess the rightness of the whistle-blowing act. They also provide a solid basis for separating legitimate cases from non-legitimate ones and for creating a wider consensus on the need for whistle-blower protection. 

Despite playing an obvious democratic role in society, whistle-blowing faces immense challenges; there are challenges of acceptance, and a larger culture of disregard for actions that deviate from established institutional norms.  Although cultural norms, and people’s attitudes to whistle-blowing, will take time to change, there is clearly increasing acceptance of the role that whistle-blowers play in combatting corruption. It is this aspect that the authors turn to next.