Work-related whistle-blowing in democratic societies context. A comparative study of international, EU and Turkish law

DOIhttps://doi.org/10.1108/JFC-09-2018-0090
Published date07 October 2019
Date07 October 2019
Pages1165-1202
AuthorKadriye Bakirci
Work-related whistle-blowing in
democratic societies context
A comparative study of international, EU
and Turkish law
Kadriye Bakirci
Faculty of Law, Hacettepe University, Ankara, Turkey
Abstract
Purpose Turkey is required by the international and EU instruments and domestic law to address the
issue of whistle-blowing and the protection of whistle-blowers. The purpose of this paper is to analyse
Turkish legislation which is applicable to work-related whistle-blowing, the conf‌lict between the workers
right to blow the whistleand the obligationto loyalty and conf‌identiality. The consequences of groundless
or deliberate falsedisclosures are considered. Comparisonsare made with international conventions, the COE
Recommendation CM/Rec(2014)7 and the Proposed EU Directive on the Protection of Whistleblowers and
ECtHR precedents.
Design/methodology/approach In the f‌irst part, this paper reviews the def‌initionof whistle-blowing
and whistle-blower.The second part outlines the impact of international and EU Law on Turkish legislation.
The third part reviewsthe Turkish legal framework applicable to whistle-blowing.
Findings Whistle-blowing in the public interest is suggested as a tool to combat corruption worldwide.
There is no doubt that some whistle-blowers have been benef‌icial to society. However without democratic
structures to takeinto account the assessment of the quality of the information, the typeof the disclosure and
the category of the reporting person, there are downsides to excessive whistle-blowing. Therefore, whistle-
blowing should be discussed in the context of democratic societies, and a balanced approach should be
adopted to ensurethe position of not only whistle-blowers but also the people affected by the reports.
Originality/value The paper offers new insightsinto the limits of work-related whistle-blowing within
the context of freedomof expression and the right of employees and public off‌icialsto petition. The protection
of whistle-blowers and the consequences of groundless or deliberate false disclosures under Turkish Law
from a comparativeperspective are considered.
Keywords COE Recommendation CM/Rec(2014)/7,
Obligation of workers to loyalty and conf‌identiality,
Proposed EU directive on the protection of whistle-blowers, Protection of whistle-blowers,
Turkish law on whistle-blowing, Work-related whistle-blowing
Paper type Research paper
1. Introduction
Def‌initions of whistle-blowing are different across societies, situations andperiods of time.
Whistle-blowers can be seen as altruistic, self‌less individuals who take action at
extraordinary personal cost. Whistle-blowers can also be shunned or seen as the off‌icial
and unoff‌icial informantsof management.
Because what is intended for by whistle-blowing, how it is used and to whom it is
available mark the difference, whistle-blowing is not a fundamental right to be defended
This research is supported by the Turkish Scientif‌ic and Technological Research Councils
international post-doctoral research grant.
International,
EU and
Turkish law
1165
Journalof Financial Crime
Vol.26 No. 4, 2019
pp. 1165-1202
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-09-2018-0090
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1359-0790.htm
across any regime or any society. Whistle-blowing can only be regarded as a freedom of
speech if society is based on democratic principles[1] and international human rights
standards.
Incidences of organisational wrongdoing is a notoriously secretive activity and it is
usually only those engaged in corruptdeals or those who work with them that are aware of
it. Insiders are among the few people who are able to report cases of wrongdoing (past or
ongoing) and identify the risk of future wrongdoing. By helping to detect wrongdoing,
whistle-blowers play a critical role in converting a vicious cycle of secrecy into a virtuous
cycle (Transparency International, 2010). However reporting or refusing to take part in
suspected wrongdoingcan come at a high price: whistle-blowers often expose themselvesto
great personal risks to protect the publicinterest. As a result of speaking out, they may lose
their jobs, dampen their career prospectsand even put their own lives at risk. Therefore, to
provide a safe alternativeto silence, legal measures should provide effectivelegal protection
of whistle-blowersagainst retaliation (Transparency International,2010)[2].
On the other hand, not every work-related disclosure is true, not allwhistle-blowers are
saints; not every concerned personis a legal entity or an employer, and groundless/baseless
or deliberate false accusationsviolate the fundamental rights of the people concerned by the
reports. Therefore full respectand protection of the rights of those concerned should also be
ensured.
As Levine points out, once accusationsof malfeasance have been made, false or true, the
overseeing authorities have no choice but to take accusations seriously and investigate.
Unlike the universal principle of presumption of innocence, the accused is often presumed
guilty, if not by the investigating committee, then by the court of public opinion. When the
processes of reporting or anonymous accusations become an accepted part of the
organisational culture,the prevailing community spirit can be eroded. Instead of a culture of
sharing and cooperation,the result might be one of suspicion and mistrust (Levine, 2016).
A proposal for a Directive of the European Parliament and of the Council on the
Protection of Persons Reporting on Breaches of Union Law (hereinafter Proposed
Directive), which was proposed by the European Commission on 17 April 2018 to provide
increased protection for work-related whistle-blowers in the European Union (hereinafter
EU), states that, it is necessary to protect public disclosures taking into account
democratic principles such as transparency and accountability, and fundamental rights
such as freedom of expression and media freedom, whilst balancing the interest of the
concerned persons (such as protection of employers to manage their organisations and to
protect their interests) with the interest of the publicto be protected from harm, in line with
the criteria developed by the international human rights standards, in the case-law of the
European Court of Human Rights (hereinafter ECtHR) and EU fundamental rights and
rules.
The Proposed Directive pursues a balanced approach to ensure not only the position of
whistle-blowers but also of the people concerned by the reports. Article 17 of the Proposed
Directive provides for effective,proportionate and dissuasive penalties which are necessary:
on the one hand, to ensure the effectiveness of the rules on the protection of reporting
persons, so as to punish and proactively discourage actions aimed at hindering reporting,
retaliatory actions, vexatious proceedings against reporting persons and breaches of the
duty of maintaining the conf‌identiality of their identity, and, on the other hand, to
discourage malicious and abusive whistle-blowing which affects the effectiveness and
credibility of the whole system of whistle-blower protection, and to prevent unjustif‌ied
reputational damagefor the persons concerned.
JFC
26,4
1166
2. The def‌initions of whistle-blowing and whistle-blower
The terms whistle-blowingand whistle-blowerare subject to a multitude of def‌initions
and do not translatewell into many languages such is into Turkish.
What is common to all possible def‌initions of whistle-blowing is that whistle-blowingis
always about individuals disclosing information. Why, how, about what and to whom
might differ according to the chosen def‌inition, but there is always a communication going
on. The whistle-blower speaks”–although he/she sometimes writes information. That
information can be warningsof risky practices, accusations of illegalities or undue diligence,
or even expressions of concern. But, the whistle-blower speaks out a judgement of a
situation (Vandekerckhove,2006).
The def‌inition of whistle-blowing usedby Transparency International (hereinafter TI)
is the disclosure of information relatedto corrupt, illegal, fraudulent or hazardous activities
being committed in or by public or private sector organisations (including perceived or
potential wrongdoing) which are of concern to or threaten the public interest to
individuals or entitiesbelieved to be able to effect action (TI, 2013).
In 2014 the Council of Europe (hereinafter COE) Committee of Ministers to Member
States adopted a Recommendation CM/Rec(2014)/7 on the protection of whistle-blowers
[hereinafter Recommendation CM/Rec(2014)/7]. According to the purposes of the
Recommendation and its principles whistle-blowermeans any person who reports or
discloses information on a threat or harm to the public interestin the context of their work-
based relationship, whetherit be in public or private sector (Principle a); disclosuremeans
making informationpublic (Principle d).
Article 3 of the Proposed Directive states that for the purposes of the Directive
disclosuremeans making information on breaches acquired within the work-related
context available to the public domain; reporting personmeans a natural or legal person
who reports or discloses information on breaches acquired in the context of his/her work-
related activities.
The proposal draws upon the case law of the ECtHR on the right to freedom of
expression enshrined in Article 10 of the European Convention on Human Rights
(hereinafter ECHR), and the principles developed on this basis by the Recommendation
CM/Rec(2014)/7, as well as further international standards and good practices, and EU
fundamental rights and rulessuch as the right to private life, the protection of personal data,
the presumption of innocence, the rights of defence, the freedom to conduct a business
(Charter of Fundamental Rights of theEuropean Union (hereinafter CFREU) Articles 7, 8,
47, 48 and 16 respectively)[3].
The ECtHR has dealt with several whistle-blowing cases that have developed the legal
framework on this matter. In Guja v. Moldova[4], Heinisch v. Germany[5] and Bucur and
Toma v. Romania[6] in determining the proportionality of an interference with a right to
freedom of expression (whetheran interference with freedom of expression in relation to the
actions of a whistle-blowerwho makes disclosures in the public domain was necessary in a
democratic society), the ECtHRestablished a number of factors which the Court must have
regard to: whether the applicant had alternative channels for making the disclosure; the
public interest involved in the disclosed information; the authenticity of the disclosed
information; whether the applicant acted in good faith; whether the public disclosure so
important in a democratic society that it outweighsthe detriment suffered by the employer;
and the severity of the sanction imposed on the applicant who made the disclosure and its
consequences.
The rights provided by the ECHR should be regarded as a f‌loor of righttherefore
reliance on Conventionrights should not restrict reliance on other legal rights or freedomsor
International,
EU and
Turkish law
1167

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