The paper stresses that in spite of the progress achieved in recent years in adopting normative legal acts aimed at disclosing information about violations (hereinafter, whistleblowing) and protection of reporting persons primarily in the public sector, many jurisdictions still demonstrate poor compliance of their legal framework with the recognised international standards.

The ILO experts come to this conclusion in a study in which they assess the laws, by-laws and other related documents concerning whistleblowing and protection of whistleblowers in the public sector of 67 countries of Africa, America, Europe, Central Asia and Asia-Pacific, and Arab states.

The documents are assessed against 14 key criteria based on the relevant materials of:

• the United Nations Office on Drugs and Crime;
• the Council of Europe;
• the Organization of American States;
• international non-profit organisation Transparency International;
• the International Bar Association;
• the Government Accountability Project;
• the Organisation for Economic Co-operation and Development.

In particular, the assessment is based on the following indicators:

• Presence of specialised legislation aimed at regulating whistleblowing and protecting whistleblowers;
• Public bodies and organisations of the public sector subject to the relevant regulation;
• List of violations that can be reported;
• Categories of persons who are entitled to protection with regard to their disclosures;
• Conditions for providing protection;
• Channels for reporting information about the violations the tips on which allow to request protection;
• Regulation of anonymous disclosures;
• Securing confidentiality of information about the personality of the whistleblower;
• Establishing the right of whistleblowers to protection against retaliation;
• Defining the list of measures for protecting against retaliation that a whistleblower can request;
• Sanctions for retaliation motivated by a disclosure;
• Defining the individuals responsible for receiving, processing and storing reports and providing protection to whistleblowers;
• Ensuring transparency of activities of the respective individuals;
• Right of whistleblowers to receive information about the process of consideration of their reports;

Under each criterion, the evaluated country is assigned one of three levels:

• Comprehensive implementation of the standards;
• Partial implementation of the standards;
• Absent/limited implementation of the standards.

The study has produced the following findings:

1. Adoption of laws on whistleblowing and protection of whistleblowers also in the public sector is a relatively new trend: over a half of the countries (36) have implemented the relevant laws in the recent decade;
2. The laws on whistleblowing and protection of whistleblowers only in five countries out of 67 analysed are recognised as compliant with the international standards under all 14 criteria: in Australia, Belgium, Spain, France and Romania;
3. Most (46) countries evaluated have adopted specialised laws on whistleblowing and protection of whistleblowers; in other 15 countries the provisions on whistleblowing and protection of whistleblowers are incorporated in a different law with a broader scope of regulation, normally, a law against corruption or on public service; six jurisdictions (Angola, Côte d’Ivoire, Algeria, Ecuador, Honduras, Indonesia) lack special norms on whistleblowing with the protection measures for whistleblowers being applied only as to witnesses and/or participants of criminal prosecution;
4. The laws on whistleblowing and protection of whistleblowers are applied to a considerable part of the public sector or, as a minimum, to all public bodies (with no exceptions or with targeted exceptions) in all countries;
5. A number of countries (Angola, Algeria, Ethiopia, Honduras, Indonesia) apply the legal provisions on whistleblowing and protection of whistleblowers only to specific positions and/or individuals exercising specific public functions or envisage that only a participant of criminal prosecution (with the status of victim, witness or accused) can be a whistleblower; any public official in Switzerland can be a whistleblower; in the other countries, not only public officials but also a wider range of individuals such as former servants (employees), public providers, contractors or subcontractors, consultants, interns, volunteers, candidates to a post and the like can request protection in relation to a disclosure;
6. Countries have different approaches to the definition of the list of violations the reporting of which can be considered a disclosure: the legislation of 34 states provides for the possibility to report a wide range of violations – they either have a general description of the subject of disclosure or quite a long list of offences that can be reported; the norms of the other countries cover only certain types of offences (for example, corruption ones) and/or are applied only to very serious crimes;
7. The laws of most countries (49) provides for the protection in the event that there are reasonable grounds to believe that the facts reported are reliable and/or the disclosure was made in good faith; six countries (the UK, Georgia, Guyana, Kuwait, Serbia, Zambia) have additional requirements to protected disclosures, for example, absence of personal interest; the other jurisdictions have extremely strict requirements to protected disclosures of offences such as accuracy of reporting and/or provision of evidence, need for the whistleblower to participate in the criminal proceedings in the quality of victim, witness or accused requiring protection, submission of an official request for protection that must be approved by the authorized public body etc.;
8. In most countries (34), it is possible to have protection only in the event of reporting to the competent public body (bodies) (external channel); 15 jurisdictions allow for reporting through external and internal channels or external and public (the media) channels, in other 18 countries protection is provided in case of disclosure through any of the three possible channels – internal, external and/or public;
9. The legislation of almost all (65) countries assessed, except for Algeria and the UK, provides directly for the protection of personal data of whistleblowers as confidential information;
10. The norms allowing for and protecting anonymous reporting can be found in only a third (24) of countries covered by the study;
11. Most (56) jurisdictions prohibit retaliation in relation to disclosures and provide a wide definition and/or a list of such measures; the law of seven countries (Angola, Switzerland, Côte d’Ivoire, Honduras, Kazakhstan, Kyrgyzstan, Nepal) provides for the prohibition of retaliation, but either there is no list of such measures or it is extremely narrow; other countries have no direct prohibition of retaliation in relation to disclosures;
12. An exhaustive list of protective measures aimed at eliminating the negative consequences or compensation in the event of retaliation against whistleblowers is in place in most (42) countries assessed;
13. Liability of those who retaliate is not provided or is defined in an insufficient manner in almost a half (25) of jurisdictions;
14. Almost all (58) countries assessed define the bodies (persons) authorised to receive, store and process reports of whistleblowers and responsible for adopting measures for protecting whistleblowers; the powers of such bodies are defined directly in the laws on whistleblowing in 55 jurisdictions;
15. It is only in 29 countries that such bodies (persons) are accountable before the public and/or supreme legislative or other public body;
16. Almost a half (31) of countries do not entitle whistleblowers to receive information about the process of consideration of their reports;

The ILO experts stress that the study detected significant deviations from the recommendations in this area, which raises the question of the need to develop additional guiding principles and/or coordination of the regulation of whistleblowing. At the same time, the study did not assess the actual enforcement of laws on whistleblowing and protection of whistleblowers and/or their actual effectiveness.

In order to improve regulation of disclosures and protection of whistleblowers the ILO puts forward the following recommendations:

1. Use the study as a reference point for comparing the laws on whistleblowing and protection of whistleblowers against international standards;
2. Consider the national context and the circumstances specific for a certain jurisdiction;
3. Take account of the need to adopt such measures as:

• Undertake training and awareness-raising initiatives on the relevant topic;
• Create protected reporting channels;
• Provide for the possibility to get advice and assistance in making disclosures from the competent public bodies and/or the employer;
• Ensure confidentiality of the personality of whistleblowers;
• Provide legal assistance;
• Define clear criteria for providing protection;
• Ensure that protection measures are adopted, in particular, by obliging the representative of the hiring authority (employer) to reinstate the dismissed servant (employee) in case they file a claim for unfair dismissal;
• Define how the burden of proof is distributed in case of retaliation;
• Hold perpetrators liable for retaliation with regard to disclosures;
• Provide for the possibility of rewards and other incentives for potential whistleblowers;
• Create independent bodies for control (oversight) over compliance with the laws on whistleblowing and protection of whistleblowers or expansion of powers of the existing public bodies to fulfill the relevant functions.