Step One

Do you work for a music, or film or television company, or an organisation controlling copyrights and administering income from those copyrights? There are specific things that are identified as wrongdoings in a workplace about which a whistleblower might be tempted to speak out.

Examples might be:

• a criminal offence;
• deliberate and persistent miscounting or misallocation of royalties;
• the concealment or incorrect classification of revenues so that they are not shared with the talent when they should be;
• a failure or likely failure by the company to honour a legal obligation;
• actions deliberately counter to the company’s ethical obligations;
• a failure to account at all or provide royalty statements when requested;
• the deliberate concealment of documents;
• health and safety violations that risk danger to talent and technicians on set;
• environmental damage caused on location;
• or any information that shows any of these are being or likely to be deliberately concealed.

Many whistleblowers fear reprisals if they reveal this information. Some governments protect whistle-blowers by law as a matter of public policy, to minimize the personal risks to whistleblowers, but ONLY if they go about it the right way.

Governments see this protection as a way to promote good corporate governance as whistle-blowers may have access to information that is not available to investors or regulators. Wrongdoing should be exposed especially where exposure is in the public interest (which is not the same thing as something that might interest the public!)

Step Three

First they should discreetly check to see if the company has a whistle-blowing policy.  There is a tension between a duty to the company (and it could be a fiduciary duty) and disclosures that could damage the company. Even if an employee has signed a confidentiality or gagging clause in a settlement agreement, this may not be enforceable for a whistle-blower. But this is something a lawyer should advise about.  In any event a check on the company’s non-disclosure policies would be in order initially as the company has a legal right to protect proprietary information or trade secrets, valuable intellectual property or material protected by legal privilege.

Step Five

A potential whistleblower should discreetly test the water to see if there are colleagues who share their worry – solidarity can be helpful.

Step Seven

Protection varies from country to country.

In the UK and the Commonwealth organisations are prohibited from subjecting whistle-blowers to harmful treatment.  They may be given protection if they are an employee or contracted worker but not if the concern relates to work that is being done for a client or customer. Whistleblowers must be integrated operationally into the business before  protection for disclosures about that company might be available.

Volunteers are not protected.

The information that qualifies for protection is determined by the UK Public Interest Disclosure Act of 1998, which operates in conjunction with certain employment laws. The Act provides that whistle-blowers cannot be dismissed or subject to detriment. What actually constitutes the public interest is a  hurdle to get over, and frivolous disclosures or a lack of good faith may affect the level of legal protection. This is why speaking with an experienced lawyer is always a good plan.   The UK law sets out what qualifies for protection:

“…….a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:-

• that a criminal offence has been committed, is being committed or is likely to be committed;
• that a person has failed, is failing or is likely to fail to comply with a legal obligation to which he is subject;
• that a miscarriage of justice has occurred, is occurring or is likely to occur;
• that the health or safety of any individual has been, is being or is likely to be endangered;
• that the environment has been, is being or is likely to be damaged;
• that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

In Europe: In 2017 the European Commission conducted a public consultation about whether to introduce an EU minimum level of protection and its introduction is supported by the Committee on Legal Affairs. Such protection forms part of the policy agenda of EU organisations such as the  Transparency Project. On May 7 th 2018 the European Commission produced a new set of rules intended to protect whistleblowers.  The rules will appear as a Directive and will be applicable across a set of  identified sectors.  More information can be found here and here.

In the USA: protection of those making disclosures also exists with the added component of a financial reward to encourage whistle-blowing.  This potentially valuable financial incentive, available to whistle-blowers making disclosures, is determined by reference to various factors such as:

• the significance of the information;
• the level of assistance provided by the whistleblower;
• any wider law enforcement interest that might be advanced by a higher award;
• the extent to which a whistleblower met internal compliance systems. It will be considered by reference to whether the whistle-blower reported on a company where they were currently employed, whether they first reported the matter internally or whether they first participated in any internal investigation.

But three factors can reduce an award:

• a whistle-blower’s own culpability;
• whether they interfered with internal compliance systems;
• or made unreasonably delayed disclosures.

Since 1989 there has been the Whistle-blower Protection Act that protects employees in the private sector from reprisals and identifies the appropriate authority to whom disclosures should be made. In addition, other federal and state statutes work to protect employees in various sectors from retaliation when they disclose, to the appropriate authorities, the misdeeds of their employers. The US constitutional right to free speech and the Freedom of Information Act work in tandem with these federal and state protections.

The USA also has a federal act specifically to protect workers in federal employment and four federal programmes for whistle-blowers that address healthcare & defence; tax; securities violations and commodities trading, to incentivise federal disclosures.

The US Department of Labour also provides guidance about protection, details of which can be found here: https://www.whistleblowers.gov/