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WikiLeaks: Where's the Public Interest?

by Cathy James

Posted: 16 Dec 2010

Are we in a new era when it comes to whistleblowing? Is the disclosure of huge swathes of confidential data in the public interest? What is the difference between the public interest and the interest of the public? These questions and many more are exercising commentators the world over as the WikiLeaks drama unfolds before us.

Few would question the public interest in the exposure of the behind the scenes attempts to silence dissent in the Trafigura case or the disclosure of the Iraq/Afghanistan war logs (even in mass data format) but when it comes to the latest disclosures, has WikiLeaks bitten off more than it can chew? Who says the editorial decisions of a small group of people in the know will protect the public interest? And will there now be a backlash - either in heightened secrecy when it comes to government information, or internationally in the perception that those who blow the whistle to the media are invariably in the wrong?

These questions will doubtless remain unanswered for some time to come as the fate of WikiLeaks is decided by government and civil society.

There are some fundamentals at play here though - we all know that there are some matters that have to be kept confidential or secret in order for government to properly function. We also want to know that our personal data is safe in the hands of government and private organisations alike. But equally, we want to know that where there is malpractice or wrongdoing the cloak of confidentiality cannot be used to hide matters of public interest.

This is backed up by a long held common law principle, that there is no confidence in iniquity - time and again protected by the UK courts - but it may not be well understood by those who witness malpractice and are unsure where to go with their concern, how to raise it or who to tell.

These questions were as relevant in 1993 when Public Concern at Work was set up as they are now. How do we learn the lessons from disasters and corporate collapses and ensure that those in a position to question malpractice, wrongdoing or unacceptable risk are able to raise their concern so that the damage is prevented? Workers are often the first to see that something is wrong and yet may risk their livelihoods in raising the issue and often work under obligations of secrecy. How do they, and we as a society, ensure that corporate cultures of silence in which dissent is crushed are challenged?

These (or similar) issues are what prompted the founders of Public Concern at Work to act in setting up a charitable legal advice centre to help individuals to challenge wrongdoing and malpractice in the workplace in order to protect the public interest and prevent damage. In the 17 years since, Public Concern at Work has advised over 18,000 people, and helped thousands to responsibly raise concerns in the workplace.

This thinking was also the catalyst for the Public Interest Disclosure Act 1998 (PIDA): the UK law that protects whistleblowers.

Essentially, the Act operates where a whistleblower has suffered a reprisal or is dismissed for coming forward; and in these circumstances they can take a claim to the Employment Tribunal. The background to PIDA was a spate of disasters in the late 1980s and 1990s such as the Piper Alpha explosion; the sinking of the Herald of Free Enterprise off the coast of Zeebrugge; and the collapse of BCCI. What was clear from the inquiries into these disasters is that staff had known of the danger and had either raised the alarm to the wrong person; in the wrong way; or had been ignored or worse dismissed for questioning the malpractice.

PIDA and an examination of how it works can also teach us a lot about accountability and what this really means to our society when we are left questioning how our democratic institutions function. Of equal importance to this legislative protection is the need to nurture a culture in our workplaces and public life which encourages those with a legitimate public concern to raise it in a manner which allows it to be considered and appropriate action taken.

In the many hundreds of PIDA claims which the Tribunal will hear this year, a careful balancing act will be undertaken to determine whether the disclosure attracts the protection the legislation can provide. Some of these claims will be from genuine whistleblowers, and the Act provides a handy means of identifying these from trouble makers, moles or others seeking to exploit their knowledge of confidential information.

The Act applies across all sectors including the Civil Service and should reassure officials who have a genuine concern about wrongdoing that it is safe and acceptable to raise any such issue responsibly and that the law provides protection against reprisals if they raise the matter in line with the Act's simple framework.

As the essential aim of PIDA is to encourage workers to raise such concerns in the least damaging way, internal disclosures are most readily protected provided the disclosure is made in good faith. Raising a concern internally would include raising it with a manager, a senior official, or through a channel authorised in a whistleblowing policy.

Under PIDA, the confidentiality of the information is not key - what matters is whether there is information which tends to show malpractice or wrongdoing and with whom the concern is raised. Contractual provisions in employment contracts and in severance and other agreements that clash with the Act's regime are void. Official secrets are, however, accorded some additional protection. An official convicted of a secrecy offence for a disclosure is not protected under PIDA. Where the official has not been prosecuted, he will be protected under PIDA unless the Employment Tribunal is satisfied that he would have been convicted.

PIDA also protects disclosures made in good faith to prescribed regulators and more widely to the police, to an MP or to the media. The Act provides a stepped process in these circumstances and so to go to a regulator such as the Financial Services Authority, the Serious Fraud Office or the Health and Safety Executive, the whistleblower needs to have some substance to their concern and to be acting in good faith.

The real test here is when the individual wants to go wider and the court will then need to look at whether this was reasonable in all the circumstances and satisfies a number of preconditions - these include whether the concern had already been raised internally; whether there was likely to be victimization if it was raised internally; and whether the concern is exceptionally serious. Wider disclosures will not be protected if there is personal gain involved and again the disclosure must be made in good faith.

The reasonableness of the disclosure will depend on the identity of the person to whom it was made, the seriousness of the concern, whether the risk remains, and whether the disclosure breached a duty of confidence the employer owed a third party. Where the concern has been raised with the employer or a prescribed regulator, the reasonableness of its response will be particularly relevant. Finally, if the concern had first been raised with the employer, it is relevant whether any whistleblowing policy in the organisation was or should have been used.

Importantly, PIDA does not encourage the anonymous leaking of information because (a) this may raise questions about whether the disclosure was made in good faith and (b) anonymity makes it harder to establish that the employer's action was a reprisal for legitimate whistleblowing as this would require evidence that the employer knew that the worker had made the disclosure.

While the law will protect someone who goes straight to the media with a disclosure of information, it is rare that going directly to the media will ever be a helpful or sensible first port of call. The circumstances in which PIDA protects wider disclosures - essentially where they are both justified and reasonable - are uncontroversial and there is a clear balance in the Act between an organisation's right to handle matters internally and the public's right to know.

Just as there are genuine whistleblowers, so too will there always be moles - individuals interested in passing on sensitive information for personal gain, or for ideological reasons, rather than in the public interest. PIDA offers a clear mechanism for sorting one from the other, but not in relation to classified information.

So would Bradley Manning be protected under PIDA should it be found that he leaked this information to WikiLeaks? Probably not as he faces prosecution under US secrecy laws and as has been said PIDA does not undo the sanctity of the Official Secrets Act.

While we should not condemn Mr Manning, he may have a part to play in the backlash that is bound to follow regarding the disclosure of the most sensitive information into the public domain. It has long been argued that if we can trust individuals working in government with the most sensitive information then we should be able to trust them to disclose such information in a responsible way and only when strictly necessary. Any such argument may well have been seriously undermined by the leaking of 250,000 unedited diplomatic cables.

There is likely to be a clear chilling effect if an overzealous response to the furore over WikiLeaksis blurred with the honest and reasonable disclosure of information in the public interest. The response for any sensible organisation should be to immediately clarify messages on when it is safe and acceptable to speak up. The response from any sensible state party should be to provide a robust legal safety net similar to the PIDA framework.

It would be very damaging indeed if the media storm surrounding WikiLeaks undermined the understanding that responsible whistleblowing is an important failsafe in the corporate world.

About this author

Cathy James is Acting Director of Public Concern at Work.


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The opinions expressed in this article are those of the author, and do not necessarily represent the views of St Paul's Institute or St Paul's Cathedral.