In the NRC newspaper of March 29, Dierx and Van Eijbergen argued that it is essential that journalists reveal serious wrongdoing, such as at the Dutch tv programs The Voice, DWDD and Studio Sport, because the legislation is inadequate. We disagree with that point of view.
According to an article by Janny Dierx and Rob van Eijbergen in the NRC newspaper of March 29, it is essential that journalists disclose serious wrongdoing, such as at the Dutch tv shows The Voice, DWDD and Studio Sport, because the legislation and procedures to protect reporters are inadequate. Often I largely agree with Rob van Eijbergen, for example in our article criticising Van Doorne’s investigation into malpractices at The Voice. But in this case, I hold a different view. Journalists do indeed play an important role in revealing malpractices. But under the new Whistleblower Protection Act (WPA), which largely took effect on February 18 2023, most organisations have yet to redesign their procedures. So it is too early to conclude at this stage that the legislation and procedures are inadequate. Rather, the issue is that most organisations have not yet properly implemented the new legislation.
The article argues that, as a result of the recent LuxLeaks ruling, whistleblowers now have more opportunities to go to the press if they have information of serious wrongdoing that affects the public interest. The EU directive to protect whistleblowers, of which the WPA is a consequence, was a direct result of LuxLeaks. This directive aims to prevent or detect wrongdoing earlier and to better protect honest people. As a result of the directive and the WPA, whistleblowers cannot be prosecuted for breach of confidentiality clauses if they report serious wrongdoing (as defined in the WPA) from now on.
Under the previous legislation, I would agree with the authors. Many people are indeed (still) afraid to report wrongdoing. But because of the WPA, this will change. And we are already seeing the first signs. Especially through the stories of (former) Studio Sport employees. But consider also, for instance, the whistleblowers at BNP Paribas (Dutch language) and the Ministry of Defence (Dutch language). If whistleblowers are convinced that nothing will be done with their report, they may now go to journalists while no retaliaton may take place. This should be an additional reason for organisations to appoint truly independent professionals to receive and follow up on whistleblowers’ reports.
Organisations should set up oral, written and soon also anonymous reporting channels. The identity of the reporter should be kept confidential unless the reporter agrees with its disclosure, and reporters may not face any form of retaliation as a result of their report. The House for Whistleblowers may soon impose sanctions if this does happen. In some EU countries, this could even include a jail sentence or a fine of up to a million euros; I am curious to see how this will play out in the Netherlands.
One of the problems with the WPA is that an individual case of undesirable behaviour is not seen as serious wrongdoing. It only is if it does not just affect the interests of one individual and there is a pattern or structural character. However, you only see the pattern when multiple reports come in. This argues in favour of setting up a central reporting and follow-up point. A single reporter does not know whether there is a pattern and therefore whether there is legal protection after the report. We would therefore also like to see the definition of serious wrongdoing changed. But employers themselves can also choose to always protect reporters. Thankfully, many private sector companies do this already.
As more whistleblowers appear in the media, employers will realise that they need to make it attractive to report internally first and handle these reports properly. That is a good idea anyway. We are hopeful that the WPA will make a difference!
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