The interest in whistleblowing and recognition of its benefits led many countries to the adoption of specific provisions regulating the rules of reporting irregularities.14 However, in many legal systems, including the Polish one, there are still no regulations enabling whistleblowers to act without fear of negative consequences. There is no doubt that due to the specificity of the undertaken activities and the very nature of whistleblowing, whistleblowers are exposed to various forms of retaliation by entities at ←13 | 14→whose disadvantage they act.15 In the case of employer-employee relationship, we can distinguish among dismissal, harassment, and discrimination. There is also a risk of liability for violation of personal rights and disclosure of confidential information. Due to the lack of legal protection, many people resign from taking action for fear of conflict with their employer. Moreover, it is very significant that despite the benefits of whistleblowing for society and organizations, the opinions on whistleblowers are still very divided and their activities are subject to different reactions in the environment.16
In order to illustrate the significance of the discussed issue, it is necessary to present a few cases of whistleblowers’ activity. One of the most famous examples is related to the collapse of the Enron Corporation.17 Before the bankruptcy, the company employed about 22 000 people and its turnover in 2000 was about 100 billion USD.18 Moreover, the general public perceived it positively, as evidenced by a number of awards it received.19 In August 2001, Enron Vice President Sherron Watkins submitted to the President a six-pages-long note on irregularities in the management and accounting of the entity, believing that the President would solve the problem.20 However, the message was completely ignored. After the opening of an investigation, the note written by Sherron Watkins was one of the most important evidence. The literature stresses that her actions could not save the company, but she nevertheless became a symbol of “heroic courage.”21 Noteworthy, ←14 | 15→Time magazine honored three American whistleblowers, including Sherron Watkins, with the title of “Person of the Year 2002.”22 In this case, we should note that Enron had a sixty-four-pages-long code of ethics. However, the mere creation of legal and moral guidelines, without adequate protection for whistleblowers and educating employees in this area, was not enough to prevent the company’s collapse.23
With regard to the activities of European whistleblowers, it is worth mentioning the case of an employee of the Romanian Prosecutor General’s Office, who shared information on the activities of politicians trying to influence the course of the investigation. Jacob Guja provided one of the newspapers with two letters received by the office. They contained evidence of pressure in a police fraud case. One of letters called on the Prosecutor General to engage personally in the case and to deal with it in accordance with the law.24 Later, the newspaper published an article on the fight against corruption. Moreover, the article contained information on abuses committed by public authorities in Moldavia in this sphere.25 As an example, the newspaper presented the content of two letters sent by Jacob Guja. The whistleblower admitted that he was the one who had given the letters to the newspaper, because he wanted to follow the president’s anti-corruption policy26 and protect the good reputation of the office.27 As a result, he had to face dismissal. The reason for this decision was that the whistleblower had not previously consulted other prosecutors and had disclosed classified documents.28
←15 | 16→
Appeals against the dismissal before the national courts have failed Jacob Guja. The courts decided that Guja’s action was an abuse of his post and could not be regarded as a legitimate exercise of his freedom of speech.29 The whistleblower brought an action before the European Court of Human Rights,30 which ruled that his release violated the freedom of expression, in particular the freedom of information and communication guaranteed by the European Convention on Human Rights. The Court indicated that Jacob Guja acted in good faith and had no other effective means of drawing attention to the abuses. Moreover, the Court noted that the public interest in the discussed case outweighed the office’s reputation loss caused by the disclosure of information. As a result of the ruling, the Moldavian State was obliged to pay the applicant €10,000 to compensate for material and non-material damage and more than €8,000 to reimburse costs and expenses. The whistleblower was subsequently reinstated, but after ten days the company fired him again. After using all possible national legal paths, once again, the case went to the European Court of Justice (ECJ). In his complaint, the man indicated that his reinstatement was an illusion and that the actions of the office continued previous sanctions imposed on him for his signaling activity. Some indicators of such situation appeared in the fact that his bosses assigned him no tasks and he did not even have access to the office. The ECJ held that – despite the alleged implementation of the previous ruling – the company never actually intended to reinstate Guja. Another dismissal was a further retaliatory measure for the whistleblowing activity undertaken in 2003. Thus, the Court found that Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had again been infringed.31 This time, the Court obliged Moldavia to pay the applicant €10,000 for the damage suffered and €1,500 as reimbursement of costs and expenses.
←16 | 17→
In the literature, we can also find examples on the activity of Polish whistleblowers.32 The publication Wiem i powiem. Ochrona sygnalistów i dziennikarskich źródeł informacji (I Know and Will Tell: The Protection of Whistleblowers and Journalistic Sources of Information) published by the Helsinki Foundation for Human Rights describes one of such examples.33 The publication concerns a gynecologist who disclosed information on the fixing of a competition for the position of the gynecological ward head at one of the hospitals. After winning the competition, this person was to open a gynecological-oncological ward in the hospital, even though the facility was not adapted for this purpose. The whistleblower shared his information with the hospital authorities, the proper Medical Chamber, and during the session of the County Council. Despite the above, the person concerned won the competition.34 However, the person was dismissed after a series of neglects that led to negative consequences for the health of patients. The whistleblower lost his job and was sued for defamation. Eventually, the court disputes ended favorably for him and, among other things, he was reinstated.
However, as evidenced by the results of the research35