Insider knowledge

Enlarge

“My name is Edward Joseph Snowden. I used to work for the government, but now I work for the public.” These are the words that kick off Snowden’s story. With this rather James Bondesque description of himself, Snowden perfectly captures the essence of what he is now considered prototypical of: the former agent shining a light on the dark sides of his trade. As if he had a ‘license to spill.’ Permanent Record, Snowden’s book, is a bestseller around the world, including in Germany, where sales have been consistently impressive. Not only is this a sign of the political significance of his case, it is also the stuff heroes are made of: the story of an IT specialist working for America’s National Security Agency who risked it all and gave up everything he had to tell everything he knew. For the past seven years, Snowden has been living in exile in Moscow. The whole world knows his face. Many see him as an icon of moral courage and political transparency.

That’s one way of looking at it, says Ralf Kölbel. Viewed from a different angle, Snowden’s story is one of treason, the betrayal of state secrets, explains Kölbel, a professor of criminology and criminal law at LMU Munich. So it is not surprising that the United States is pursuing him with the full force of the law, notwithstanding the fact that Donald Trump, President at that time, tweeted about a possible pardon.

Hero or traitor: Why is it that whistleblowing is such a polarizing subject—and not only in the big cases? Kölbel has already spent a great deal of time studying whistleblowers, people with insider knowledge who reveal wrongdoing within their organization. Outwardly a label with positive connotations, linguistically it’s not a word that sounds like a very big deal.

And it’s true to say that the vast majority of cases, unlike Snowden’s, do not play out on the world stage. Admittedly, there is a lot of attention focused on the financial scandal at former DAX-listed company Wirecard right now, where whistleblowers were the first to flag accounting irregularities. And on the case of eye specialist Li Wenliang, a doctor who was among the first to draw attention to a new type of lung infection spreading across his home town of Wuhan and who was hounded for it by the Chinese authorities.

But what Kölbel endeavors to do is to understand the phenomenon of whistleblowing in all its manifestations—the ‘small’ stories, the quiet rectification of misdeeds and the standoffs that end up in employment litigation, as much as the overarching legal debates and the influence that the ‘big’ international cases have on them. He attempts to figure out what it is that turns a worker into a whistleblower. He studies the mechanisms that drive an originally loyal whistleblower to disloyalty and make them put their insider knowledge into the public domain. In his research, the legal scholar not only analyzes the source material but also underpins it with empirical studies of the people involved.

There is no such thing as the typical whistleblower.

So how accurate is the image of the whistleblower as a kind of Robin Hood, a picture of high moral standards and selflessness? Could it be that the ambivalence in the public’s perception of how the phenomenon of whistleblowing should be viewed is mirrored in the ambivalence of the act itself, of the essence of the whistleblower, even? Regardless of how justified someone may be in criticizing misdeeds in any given case, isn’t whistleblowing also the domain of dogmatists, know-it-alls and attention seekers?

“Often, these people are very different to the view of whistleblowers that prevails among the public at large,” says Kölbel, describing the whistleblowers he has interviewed. “Their stories are frequently very different. Usually the focus is not so much on civic duty, political relevance or even, necessarily, moral courage. Normally it’s more about trivial conflicts rather than serious wrongdoings.”

As Kölbel explains, there is no such thing as the typical whistleblower, someone who is dying to uncover something at any cost. Sure, the more appalling or dangerous an abuse, the stronger the impulse to do something about it. Conversely, people who don’t like conflict are less likely to call out wrongdoing for fear of negative consequences. Nevertheless, anyone, whatever their personal disposition is, could find themselves in a situation where they divulge the things they know. Numerous studies over the years have suggested this, as the LMU legal scholar points out. But most of these studies are based on opinion polls asking people - who have not been involved in whistleblowing - what they would do in certain hypothetical situations.

Kölbel, for his part, has analyzed genuine cases and interviewed some 30 whistleblowers to find out about their experiences. The people he spoke to came from very different industries and professions, “from the diplomatic service and from small companies alike; there were scientists and doctors among them.” The bottom line: Even if there is no such thing as a typical whistleblower, there is certainly a typical way in which cases escalate.

As a rule, the story starts small: The insiders will usually speak with their line manager about what they’ve seen. If they don’t feel they’re being heard, they will notify the organization’s top management, often multiple times. If the management stalls for time, fobs them off with pretend solutions or even threatens them with reprisals, the case will slowly but surely escalate. Until that point is reached, however, the insiders will “almost always,” says Kölbel, seek a fast resolution without any fuss—they have no wish to get law enforcement or the media involved.

If the situation cannot be resolved in that way, the insider can easily become a ‘disruptive influence.’ Colleagues snub them—after all, they’ve breached the duty of loyalty that comes with being a member of a group. Their integrity is questioned, their competency doubted, they may even experience bullying. And suddenly, for the whistleblower, it’s not so much about righting the original wrong anymore. It’s about protecting their career, their personal integrity, even their health. “Everything that originally drove them is then pretty much overtaken by that,” says Kölbel.

Panama Papers and Dieselgate

Kölbel describes the case of one of the whistleblowers who participated in the study. The man used to work for a government agency. When he was sent to work in another department, he came across irregularities in the accounts. There had evidently been some misappropriation of funds, “about 100.000 euros, not a huge deal.” However, because he was responsible for verifying the application of funds, he felt forced to act. His predecessor had not followed up the fiddling, but he decided to raise the alarm, if for no other reason than to prevent it from “coming back to bite him later on,” as Kölbel puts it. But the whole thing did have a negative impact on him: As a government employee who had always performed well in his role, he started to get bad appraisals; he was reassigned to an unattractive post. When he finally went to the press, it was made clear to him in no uncertain terms that he would have to look for a new job.

The experience of other participants is not dissimilar. Kölbel tells of a doctor who was sidelined because he’d lifted the lid on quality failures in patient treatment, and a scientist working for a government agency who was assigned a ‘broom cupboard’ in the basement as an office and was virtually never given any more work. How many whistleblowers suffer a similar fate Kölbel cannot say. Some surveys find that a large majority are bullied at work, lose their jobs, suffer health problems. “It was a similar story in our studies,” says Kölbel, though he does not necessarily consider that conclusive evidence. “The people for whom everything went well, they have no reason to take part in a study like ours,” he points out.

More and more companies are publicly proclaiming that they see the value in whistleblowing. They are establishing points of contact for their employees, places where they can report wrongdoings, often anonymously. Telephone hotlines, e-mail addresses and ombudsmen—such internal whistleblower systems are an increasingly important compliance and risk management instrument for many firms. They are keen to address any rule-breaking within the business in the interests of avoiding economic damage and legal consequences. And, says Kölbel, they want to “make an offer that encourages the people who have something to share to share it with the company and not the outside world.”

Kölbel and his research associate Nico Herold concentrated in one of their recent studies on aggregating all of the data that exists on how successful internal whistleblowing can be. A fact check looking at strictly evidence-based criteria draws a sobering conclusion: The empirical evidence “is limited,” write Kölbel and Herold. They found that it is “currently an outwardly plausible but by no means evidence-based strategy for risk management.”

Governmental regulators and prosecutors also rely on whistleblower systems. They say whistleblowers are an important source of information to help them uncover things like white-collar crime. Kölbel explains that the ongoing debate over police culture has made many experts call for external whistleblowing systems to better enable the authorities to root out right-wing networks or structural racism in the security forces.

It’s certainly true that in many cases there is a strong public interest in uncovering wrongdoing—just think of the Panama Papers or Dieselgate. And whenever a veritable scandal comes to light, there are ever-louder calls for whistleblowing as an institution to control it. Advocates like to talk up the potential of such systems by making reference to the situation in the United States, where it is normal for whistleblowers to profit financially from the fines imposed on those found guilty of white-collar crimes. Kölbel himself estimates the “economic benefit” of government whistleblower systems as “relatively low,” at least for Germany.

An underregulated subject

If companies and organizations really want to encourage whistleblowing, they have to create a sense of trust, says the criminologist, with low-threshold opportunities for people to report infringements, and they must also provide credible assurance that tipoffs will be welcomed and followed up. Because, as Kölbel asserts, “the fear factor is huge.”

This is precisely why Kölbel insists it is crucial to have a clear-cut legal framework: “Those people who, for whatever reason, become whistleblowers need the legal situation to be clearly calculable and predictable.” They need to know what they’re letting themselves in for. Yet this clarity is lacking in Germany so far, and even the Trade Secrets Act that came into force in April 2019 does not do much to change that, the expert explains, even if it does establish in law a general permission to disclose secrets, something for which there was never a legal basis before. “It’s an underregulated subject in Germany,” Kölbel says. “Time and again we’d get these waves of debate over how to deal with the phenomenon of whistleblowing.” Sometimes it was something that happened on the international stage setting it all off, sometimes it was judgments closer to home, in German cases.

Incidentally, Kölbel now plans to analyze these legal policy debates to track how the Germans’ ambivalence towards whistleblowers themselves has changed. Drawing on texts, speeches, statements and press releases, the legal scholar is going to trace the interpretive patterns and legal stances they illustrate. The project is part of a Collaborative Research Center funded by the German Research Foundation (DFG) on ‘Cultures of Vigilance.’

Debates of this kind have repeatedly led to legislative initiatives being put before the German parliament, all of which failed to get any further. Only the EU’s new Whistleblower Protection Directive has brought momentum into the situation. Having come into force at the end of 2019, it now needs to be transposed into national law by the EU Member States. The stated aim of the Directive, as the name implies, is to give whistleblowers better protection than they have enjoyed so far. Just ten EU Member States currently have clear-cut rules on the matter.

But what protection can the EU realistically give to whistleblowers? The Directive contains a long list of banned actions, says Kölbel, things that whistleblowers must be protected against. But of course, there is a limit to how far the law can protect someone within the social structures of a company organization: “A whistleblower experiencing isolation in the workplace or being rejected by his colleagues is not really something that’s going to be prevented by legal remedies.”

It also remains to be seen whether the EU Directive proves able to create the conditions for whistleblowers to remain anonymous. All companies with more than 50 employees are now obliged to establish whistleblowing systems. Kölbel notes critically that anonymity may be difficult to preserve in small firms. A whistleblower will, after all, normally be communicating internal knowledge that few in the company could possibly possess. “For all of the whistleblowers we interviewed, anonymity was never a consideration for that very reason. They had their cards on the table right from the start,” reports Kölbel.

Overall, however, the EU Directive will raise the level of protection, Kölbel asserts. It will at least make the risk calculable, and it will strengthen the whistleblower’s position in wrongful dismissal cases. Up to now they’ve had to risk everything without knowing whether or not the labor court would believe their assertion that addressing the issue internally had no prospect of success and took it to an outside authority straight away was legal.

Long a matter of dispute, the question of whether or not a whistleblower is actually obliged to first address the issue internally within their organization has now been clarified by the new EU Directive as far as Kölbel is concerned: It is perfectly permissible to go straight to the regulator or the public prosecutor’s office instead. The Directive gives both approaches equal validity. Only going to the press is viewed ‘narrowly’ and contacting journalists is seen as a last resort.

Most importantly, stresses Kölbel, the EU Directive leans towards putting an end to ambivalence and polarization. Whistleblowers are no longer seesawing between hero and traitor, he says. “How they are viewed has now been decided on a political level: Whistleblowing is something that society accepts in principal—and society therefore protects whistleblowers. That is the spirit of the EU Directive.” Martin Thurau

Prof. Dr. Ralf Kölbel holds the chair of Criminal Law and Criminology at LMU Munich. Kölbel, born in 1968, studied law at the University of Jena, where he also completed his doctorate and qualified as a professor. Kölbel worked at TU Dresden, LMU Munich and the German Police University (DHPol) in Münster before becoming Professor of Criminology, Criminal Law and Criminal Proceedings Law at the University of Bielefeld prior to returning to LMU in 2013.