Report of the Special Rapporteur to the General Assembly on the Protection of Sources and Whistleblowers
The Special Rapporteur’s report to the UN General Assembly in 2015 is now online.
This report, the latest among several produced by the mandate over the past twenty years to consider rights of access to information, focuses on the protection of sources and whistleblowers around the world. It reviews national and international laws and practices and provides recommendations to improve available protections.
As part of the preparations for this report, the Special Rapporteur issued calls for submissions from Governments and Civil Society. The Special Rapporteur is pleased to acknowledge the many States and NGOs that responded to this call, which may be found below.
International and national protections
The right to access information as established by the two similar versions of Article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights underpins the establishment of norms protecting sources and whistleblowers, persons who bring to public knowledge otherwise undisclosed information.
Many States protect source confidentiality and whistleblowers as a matter of their domestic legal systems. Nonetheless, it is common for governments to restrict access to information and to penalize sources and whistleblowers, particularly in (but certainly not limited to) cases touching on national security and intelligence.
Article 19(3) of the Covenant provides that restrictions on the freedom of expression must be provided by law and be necessary to achieve a legitimate interest, identified as the rights or reputations of others, national security, public order, public health or public morals. Mere assertions of such interests are insufficient; to be lawful under the Covenant, the restriction must actually be necessary to achieve a specified interest, and it must be proportionate to that goal.
Recommendations to improve the protection of sources and whistleblowers:
The report draws a number of conclusions and urges States and international organizations to adopt or improve laws and practices – and to foster the necessary political and social environments – that provide genuine protection to sources and whistleblowers. Such protections should be adopted not only by governments but also international organizations such as the United Nations.
- Ensure national legal frameworks provide for the right of access to information in accordance with international standards: National legal frameworks establishing the right to access information held by public bodies should be aligned with international human rights norms. Exceptions to disclosure should be narrowly defined and clearly provided by law and be necessary and proportionate to achieve one or more of the above mentioned legitimate objectives.
- Adopt or revise and implement national laws protecting the confidentiality of sources: Laws guaranteeing confidentiality must reach beyond professional journalists, including those who may be performing a vital role in providing wide access to information of public interest such as bloggers, “citizen journalists,” members of non-governmental organizations, authors, and academics, all of whom may conduct research and disclose information in the public interest. Protection should be based on function, not a formal title.
- Adopt or revise and implement national legal frameworks protecting whistleblowers: State laws should protect any person who discloses information that he or she reasonably believes, at the time of disclosure, to be true and to constitute a threat or harm to a specified public interest, such as a violation of domestic or international law, abuse of authority, waste, fraud, or harm to the environment, public health or public safety.
- Internal institutional and external oversight mechanisms should provide effective and protective channels for whistleblowers to motivate remedial action: In the absence of channels that provide protection and effective remediation, or that fail to do so in a timely manner, public disclosures should be permitted. Disclosure of human rights or humanitarian law violations should never the basis of penalties of any kind.
- Protections against retaliation should apply in all public institutions, including those connected to national security: Because prosecutions generally deter whistleblowing, penalties should take into account the intent of the whistleblower to disclose information of public interest and meet international standards of legality, due process, and proportionality.
- Establish personal liability for those who retaliate against sources and whistleblowers: Acts of reprisals and other attacks against whistleblowers and the disclosure of confidential sources must be thoroughly investigated and those responsible for these acts held accountable. When these attacks are condoned or perpetrated by authorities in leadership positions they consolidate a culture of silence, secrecy, and fear within institutions and beyond, deterring future disclosures. Leaders at all levels in institutions should promote whistleblowing and be seen to support whistleblowers, and particular attention should be paid to the ways in which authorities in leadership positions encourage retaliation, tacitly or expressly, against whistleblowers.
- Actively promote respect for the right of access to information: Law enforcement and justice officials must be trained to ensure the adequate implementation of standards establishing protection of the right to access information and the consequent protections of confidentiality of sources and whistleblowers. Authorities in leadership positions should publicly recognize the contribution of sources and whistleblowers sharing information of public relevance and condemn attacks against them.
- All of these principles apply to the United Nations and other international organizations: The UN and international organizations should adopt effective norms and policies of transparency to enable the public greater access to information. Specific norms protecting whistleblowers should follow similar criteria provided in the recommendations for States: wide scope of application, promotion of disclosure of information in the public interest, and clarity in the mechanisms for reporting and requesting protection. Particular attention must be paid to the effectiveness and independence of existing reporting and justice mechanisms given the lack of access of whistleblowers to any other formal justice system.
Submissions received in the preparation of this study
Twenty-eight States responded to a questionnaire requesting for information on national norms protecting sources and whistleblowers. Individuals and NGOs also submitted information.
Click in the list below to view any particular State submission:
- Burkina Faso
- Republic of Korea
- Saudi Arabia
- Slovakia and Annex
- Trinidad and Tobago
- United States of America
Click in the list below to view any particular civil society submissions:
- American University School of International Service graduate students
- Article 19
- Association for Progressive Communications
- Blueprint for Free Speech
- Center for Constitutional Rights
- Freedom of the Press Foundation
- Government Accountability Project
- Guido Strack
- Hungarian Civil Liberties Union/K Monitor
- Jean-Philippe Foegle
- Legal Resouce Centre
- Reporters Committee for freedom of the press
- Rita Pal
- Runa A. Sandvik
- William Bourdon
This report, by necessity, excludes a significant amount of research conducted by individual scholars, civil society organizations, and international organizations and treaty bodies. For those interested in conducting further research, the Special Rapporteur would recommend, in addition to the submissions listed here, the documents cited in the report, such as the Global Principles on National Security and the Right to Information (Tshwane Principles); the documents collected at Right2Info.org; and the UN Office on Drugs and Crime, Resource Guide on Good Practices in the Protection of Reporting Persons.
To view original report: http://www.ohchr.org/EN/Issues/FreedomOpinion/Pages/ProtectionOfSources.aspx