UIA 10th Annual Business Law Forum: Whistleblowing hotlines – public versus private?
On Friday the 21st and Saturday the 22nd of September, the UIA 10th Annual Business Law Forum took place in Vienna, Austria. A panel consisting of leading competition lawyers and an expert from the finance sector from Germany, Poland and the UK, moderated by Jan Stappers of WhistleB, shared their views on the topic of whistleblowing hotlines, both from a public and a private perspective.
Public authorities are increasingly relying on public whistleblower hotlines as a tool for investigation and information gathering. In an interactive form, the panel provided insights into the recent experiences of public authorities in using this tool and exchanged views on practical and legal barriers to the use of whistleblower hotlines in private industries and public procurement.
The value of whistleblower protection is being recognised internationally, proof of which is provided by the various new laws protecting whistleblowers, development of guidance on whistleblowing management and most recently, by the EU Whistleblower Protection Directive (‘Directive’). The panel addressed the main current developments, being the Directive and the now being drafted ISO37002 standard ‘whistleblowing management systems’. We pointed out how the EU Directive provides minimum standards of what is required of both private and public EU organisations on whistleblower protection, while the ISO 37002 standard provides practical guidance on how to develop and implement an effective and responsive whistleblowing management system.
The panellists of the UIA 10th Annual Business Law Forum addressed how the German FCO’s, the UK’s competition authority’s and the Commission’s whistleblowing tools work in practice and whether they have helped in uncovering antitrust violations. It is interesting to see that currently, there are very few private entities under the obligation to provide for a whistleblowing channel. This means that organisations face a significant risk of information on wrongdoings being provided to the authorities, without the organisation having the chance to deal with the wrongdoing internally or prepare for an investigation by an authority.
A further point was made in relation to the incentives to report. While in some jurisdictions organisations are offered incentives to self-report, such incentives are generally absent on an individual level. With other words: why would a whistleblower raise a concern? Should a whistleblower perhaps share in the benefits a company might enjoy when making use of leniency facilities?
This brought us to the private perspective of whistleblowing management. One panel member shared experiences of creating a company culture in which addressing concerns of wrongdoing internally were eventually embraced, becoming business as usual. Addressing the historical scepticism against whistleblowing and adapting it to the specific national culture, and making it a topic that is a pillar of the entire compliance culture, the whistleblowing hotline became the least used channel for whistleblowing in this particular company. The company in the example managed to create an environment in which employees feel confident to address wrongdoing in a personal way, which makes the option of reporting anonymously mostly complementary. It should be like this everywhere, but many organisations still have a long way to go before reaching such a healthy working environment.
The panel of the UIA 10th Annual Business Law Forum finished with comparing the great results of the Austrian Competition Authority BWB, who indicated that most likely due to their intensive communication strategy raising awareness amongst citizens of Austria, managed to receive a high percentage of relevant reports of competition infringements compared to their peers in the UK and Germany.