[DRAFT] Whistleblowing Convention

[The Ice States]

Whereas whistleblowing provides a recourse against illicit activity which may otherwise be ignored;

Be it enacted as follows.

1. Definitions: The following provisions apply to the interpretation of this resolution.
   
   
   1. A "state" is a member nation or any administrative or political subdivision thereof.
      
      
   2. An "authorised recipient" is an entity receiving a Section 2a report (hereinafter "report") under Sections 2, 5 or 7.
      
      
   3. "Consent" refers to positive, free, informed, and written consent.
      
      
   4. No part of this resolution restricts the ability of member nations to jointly or severally create further protections for disclosure of unlawful, improper or otherwise illicit activity by a state or private entity.
2. Agencies: Every state and private entity therein must designate at least one body (hereinafter "agency") independent of the bodies it maintains direct authority over under this Section. An agency shall have the following duties:
   
   
   1. Receiving bona fide reports of unlawful, improper or otherwise illicit activity by said state or entity, and never (i) disclosing to any external person or group of persons the identity of any individual or entity (hereinafter "whistleblower") providing such a report; or (ii) discriminating against a whistleblower based on any social categorisation protected by World Assembly or other applicable law as arbitrary or reductive;
      
      
   2. Promptly and fully forwarding any report which that agency lacks the authority to adequately address to another agency with such authority; the forwarding agency shall subsequently disclaim all authority under Sections 2c - 2e over the report;
      
      
   3. Promptly reviewing every other report the agency receives, and decide whether to officially act against the reported activity, either immediately or after an official investigation by that agency, based on factors including the severity and likelihood of the reported activity;
      
      
   4. Reserving authority to (i) order the cessation of reported activity upon deciding to act against it; (ii) prosecute, or where the agency oversees a private entity only, request the prosecution of, unlawful reported activity or failure to comply with a Section 2d.i order; and (iii) act as a mediator to address reports, conditional on the consent of all involved parties including the original whistleblower; and
      
      
   5. Authorising the publication of activity or evidence thereof reported under Section 2a, where (i) the information to be disclosed is demonstrably correct; (ii) the public has an interest in knowledge of such information which outweighs any compelling public interest against such disclosure, eg personal privacy or national security; and (iii) such disclosure does not violate the law of any jurisdiction the agency does not oversee.
3. Liability: Every agency is subject to a standard of respondeat superior, such that an agency shall, in addition to the official in question, be criminally liable for violations of this resolution by an official of said agency. Section 2's anonymity requirements may be waived only
   
   
   1. with the consent of the relevant whistleblower;
      
      
   2. for Section 2b forwarding of a report, in which case the entity to which the report is forwarded must comply with the same anonymity requirements; or
      
      
   3. to the minimal extent deemed essential by a court or other tribunal to facilitate an ongoing official investigation regarding (i) a likely violation of criminal law or (ii) the reported activity.
4. Non-retaliation: No whistleblower may be subject to penalties, discrimination or otherwise retaliation for lodging a report.
   
   
5. Direct reports: A report may be directly lodged with the state or entity responsible for the reported activity, in which case the state or entity must comply with this resolution's anonymity requirements as if it were an agency, and, subject to the whistleblower's consent, forward the report to an agency under the procedure specified in Section 2b. Absent consent from the whistleblower to such forwarding, the state or entity must process the report itself as if it were an agency.
   
   
6. Advice: A prospective whistleblower shall possess the right to request advice on how or whether to lodge a report from up to three individuals with the general expectation of confidentiality. No person may be penalised for invoking this right.
   
   
7. GDAA: The General Disclosure Appellate Agency (hereinafter the GDAA) is established as an agency with universal jurisdiction and prosecutorial powers. A whistleblower may directly submit a report to the GDAA should that whistleblower believe that a lower-level agency failed or is unlikely to appropriately address the report or reported activity. The GDAA shall directly process all reports lodged with it.
   
   
8. Contradiction: Should a provision of this resolution contradict a past World Assembly resolution still in force, that previous resolution takes precedence.

Discuss.

[The Ice States]

Whereas it is in the public interest for illicit activity by both private and public organisations to be known, providing a natural recourse for such activity where it may otherwise not be adequately dealt with;

The World Assembly enacts as follows, subject to relevant past World Assembly law still in force.

1. The following provisions are to be followed in interpretation of this resolution.
   
   
   1. "Whistleblowing" refers to the truthful, bona fide disclosure of activity, or evidence thereof, likely to be perceived as unlawful, improper, or otherwise illicit, where such activity is by a public or private organisation, including the state itself.
      
      
   2. "External whistleblowing" refers to whistleblowing where the activity or evidence thereof is supplied to any entity or person without authority over the organisation, person, or group thereof directly responsible for the activity.
      
      
   3. Terms in the singular include the plural thereof, and vice versa.
2. Subject to Section 3, no member nation, or administrative or political subdivision thereof, may penalise or discriminate against any individual or entity for (a) engaging in acts constituting whistleblowing; or (b) circulating information published in whistleblowing.
   
   
3. Section 2 shall not apply to information disclosed via external whistleblowing, or circulation of the same, where disclosure of that information demonstrably harms a compelling public interest, such as personal privacy or national security, which clearly outweighs the public's interest in the disclosure of that information.
   
   
4. Except where (a) relevant to legal proceedings for acts falling under Section 3; or (b) said whistleblower has consented to the publication of their identity; the act of publishing the identity of a whistleblower is a criminal offense in every member nation. Accordingly, each member nation must, in good faith, prosecute this act as any other criminal offence in that member nation.

Whereas it is in the public interest for illicit activity by both private and public organisations to be known, providing a natural recourse for such activity where it may otherwise not be adequately dealt with;

The World Assembly enacts as follows, subject to relevant past World Assembly law still in force.

1. The following provisions are to be followed in interpretation of this resolution.
   
   
   1. "Whistleblowing" refers to the truthful, bona fide disclosure of activity, or evidence thereof, likely to be perceived as unlawful, improper, or otherwise illicit, where such activity is by a public or private organisation, including the state itself.
      
      
   2. "Internal whistleblowing" refers to whistleblowing where the activity or evidence thereof is supplied privately and solely to an entity or person with authority over the organisation, person, or group thereof directly responsible for the activity.
      
      
   3. Terms in the singular include the plural thereof, and vice versa.
   
   
2. No member nation, or administrative or political subdivision thereof, may penalise any individual or entity for engaging in acts constituting whistleblowing. Nor may any organisation discriminate against an individual for engaging in acts constituting whistleblowing. Both provisions of this Section shall be subject to Section 3, in the case of external whistleblowing only.
   
   
3. Section 2 shall not apply to disclosure in the context of external whistleblowing of
   
   1. personal information which would demonstrably jeopardise an individual's right to personal privacy, where the harm to said right to privacy demonstrably outweighs the public's interest in the disclosure of said information; or
      
      
   2. information which would pose a clear, imminent, and significant danger to the public's interest in national or operational security; where said danger demonstrably outweighs the public's interest in the disclosure of said information.
   
   
4. No member nation may penalise any person or entity for circulating information published in whistleblowing, except where said information falls under Sections 3a or 3b.
   
   
5. Except where said whistleblower has consented to the publication of their identity, the act of publishing the identity of an internal whistleblower, or an external whistleblower whose acts do not fall under Sections 3a or 3b, is a criminal offense in every member nation. Accordingly, each member nation must, in good faith, prosecute this act as any other criminal offense in that member nation.

Whereas it is in the public interest for illicit activity by both private and public organisations to be known, providing a natural recourse for such activity where it may otherwise not be adequately dealt with;

The World Assembly enacts as follows, subject to relevant past World Assembly law still in force.

1. The following provisions must be followed in interpretation of this resolution.
   
   
   1. "Whistleblowing" refers to the act of disclosing activity, or evidence thereof, by a public or private organisation, including the state itself, where that activity is likely to be perceived as unlawful, improper, or otherwise illicit.
      
      
   2. "Internal whistleblowing" refers to whistleblowing where the activity or evidence thereof is supplied privately and solely to an entity or person with authority over the organisation, person, or group thereof directly responsible for the activity.
      
      
   3. Terms in the singular include the plural thereof, and vice versa.
   
   
2. No member nation, or administrative or political subdivision thereof, may penalise any individual or entity for engaging in acts constituting whistleblowing. Nor may any organisation discriminate against an individual for engaging in acts constituting whistleblowing. Both provisions of this Section shall be subject to Section 2, in the case of external whistleblowing only.
   
   
3. Section 2 shall not apply to the following acts where they occur in the context of external whistleblowing.
   
   1. The publication of personal information whose publication would (i) clearly jeopardise an individual's right to personal privacy; and (ii) be unlawful outside of the context of whistleblowing; or
      
      
   2. The publication of information which demonstrably poses a clear, imminent and significant danger to the public's interest in national security; where that danger outweighs the public's interest in the publication of this information.
   
   
4. No member nation may penalise any person or entity for circulating information published in whistleblowing, except where said information falls under Sections 3a or 3b.
   
   
5. The act of publishing the identity of an internal whistleblower, or an external whistleblower whose acts are compliant with Section 3, is a criminal offense in every member nation. Each member nation must, in good faith, prosecute this as any other criminal offense in that member nation.

[Simone Republic]

In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

1a. What is "likely" and "perceived" ? What if the information turns out to be misleading or untrue

2. Again, problematic if misleading information is released or information that turns out to be malicious.

3a. Having a tribunal examine some personal information after disclosure is after the horse has bolted, especially if the whistleblowing itself is public.

3b. Again, who is to judge whether something is of a national security nature? That's after disclosure. First Amendment will be a big issue here (I know you keep saying NS is not US, but hey)

4. Ditto about First Amendment

5. Again, after the horse bolted. And what about civil cases if the material turns out to be damaging to a third party? They can't sue?

Also can an organization that suffers from damage from false whistleblowing sue? Reputation damage etc. Especially from clause 1b but clause 1a as well.

[The Ice States]

In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

This is intentional.

1a. What is "likely" and "perceived" ? What if the information turns out to be misleading or untrue

2. Again, problematic if misleading information is released or information that turns out to be malicious.

Also can an organization that suffers from damage from false whistleblowing sue? Reputation damage etc. Especially from clause 1b but clause 1a as well.

My intent here is that if it's "misleading or untrue" (or "malicious"), I highly doubt that the revelation was indeed "bona fide" -- and even without that standard, then there's no actual activity being disclosed. I've amended the definition to make this more explicit -- does this address your concern?

3a. Having a tribunal examine some personal information after disclosure is after the horse has bolted, especially if the whistleblowing itself is public.

3b. Again, who is to judge whether something is of a national security nature? That's after disclosure.

I've removed the tribunal wording.

First Amendment will be a big issue here (I know you keep saying NS is not US, but hey)

4. Ditto about First Amendment

I don't care about whether this conflicts with some real-world law. Can you make your argument regarding "First Amendment" based purely on NS and the WA?

5. Again, after the horse bolted.

What do you suggest instead? That it not be penalised because it already happened?

And what about civil cases if the material turns out to be damaging to a third party? They can't sue

There's nothing in Section 5 saying that they cannot also sue, in addition to it being a criminal offense.

[Hulldom]

Is it "external whistleblowing" or "eternal whistleblowing"?

Also, I'm not entirely sure that second clause in (4) is necessary given your wording in the first clause in (4).

[The Ice States]

Is it "external whistleblowing" or "eternal whistleblowing"?

Also, I'm not entirely sure that second clause in (4) is necessary given your wording in the first clause in (4).

Fixed the definition. I think it's good to have the prosecution requirement to help with good faith enforcement.

[The Ice States]

Bump.

[Simone Republic]

In the same numbering as your clauses:

Definition is very unclear on what constitutes whistleblowing. "Improper" is not illegal, different standards of proof apply.

This is intentional.

Will oppose on this ground. I think the standard of proof is way too low.

[Imperium Anglorum]

E Mortimer Wellesley. Inasmuch as "said whistleblower" is the first instance of the word "whistleblower" in the proposal, it is clearly not the "said whistleblower". Legalisms have usage rules too.

OOC. I would highly recommend reviewing real world laws on whistleblower process and procedure. It generally works by allowing disclosure of classified or sensitive information to an independent or otherwise privileged institution (the titles are sometimes "ombudsman" or "inspector-general") who then acts on it. The important part is non-retaliation and secrecy to prevent retaliation. Disclosure to unprivileged groups is not permitted: a whistleblower is not fit in of himself to judge whether something's release is a threat to national security and release can regardless not be walked back, meaning that harms of disclosure cannot actually be cured.

[Simone Republic]

E Mortimer Wellesley. Inasmuch as "said whistleblower" is the first instance of the word "whistleblower" in the proposal, it is clearly not the "said whistleblower". Legalisms have usage rules too.

OOC. I would highly recommend reviewing real world laws on whistleblower process and procedure. It generally works by allowing disclosure of classified or sensitive information to an independent or otherwise privileged institution (the titles are sometimes "ombudsman" or "inspector-general") who then acts on it. The important part is non-retaliation and secrecy to prevent retaliation. Disclosure to unprivileged groups is not permitted: a whistleblower is not fit in of himself to judge whether something's release is a threat to national security and release can regardless not be walked back, meaning that harms of disclosure cannot actually be cured.

Also agree with the above.

1. That said, my long debate with Magecastle was more over private enterprises and whether say whistleblowing on "improper" office relationships (as an example) would be permitted, and whether that would harm the individuals at the end of the accusations?

2. What happens if the accusations are bona fide believed to be true by the whistleblower but turns out to be false? How is the damages supposed to be cured?

[Magecastle Embassy Building A5]

I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

[Simone Republic]

I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

[The Ice States]

I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

Being found innocent by a court is not a penalty.

[Simone Republic]

In *whose* judgment is it truthful? Why would the whistleblower know? Don't you need a court process to determine facts?

Being found innocent by a court is not a penalty.

Having someone's reputation dredged through the mud before being found not guilty is still career damaging. Ask Johnny Depp/Amber Heard or Kevin Spacey.

[Imperium Anglorum]

I will address the comments by IA over the next few days, but regarding 2 above, it must be both "bona fide" and "truthful" to fall under the definition -- just being one is irrelevant if it's false.

OOC. A whistleblower isn't normally privy to everything. The example of that guy who whistleblew (legally and through proper process) on UFOs comes to mind. Assuming ad arguendo that aliens do not in fact exist, are not in fact visiting Earth, and are not in the possession of various world governments, your proposal doesn't protect him because it isn't truthful.

The reason why most whistleblower laws premise this on disclosure to a privileged institution or party is to sort out things like truth and (possible) public disclosure of relevant information. Showing something to be true or false when it relates to classified operations also could require disclosure to the trier of fact substantial amounts of other classified material. I'm uncomfortable with such a messy and leak-prone post hoc mechanism.

[The Ice States]

Ooc: I've posted a new draft which almost entirely changes the approach of the draft. As a result, the draft is currently at exactly 5000 characters, and so the preamble has been removed.

Edit: I've effected some rewrites which cut down on character count a bit, so it's still on 5k characters but I've manged to squeeze in a short preamble.

[The Ice States]

Would appreciate any more comments.

[Tinhampton]

On Article 2a(ii): What "compelling practical purposes" (GA#35) could an agency utilise to discriminate against a whistleblower on their arbitrary and reductive characteristic(s) were this Article not to exist?

* * * * * * * * * *

On Article 6: This article contains no guardrails. A prospective whistleblower can ask his wife, their two-year-old toddler, and the guy who serves beer at the local pub for "advice on how or whether to lodge a report... with the general expectation of confidentiality." Then he tells his boss. Either he can hide the fact he has asked three people already (and lie about the extent he has utilised his right to advice), or he can admit he has asked three people for advice (and thereby risk having his boss tell everyone else he's planning on doing a report; anonymity and non-retaliation is only guaranteed to actual whistleblowers). The situation also gets murky on the off-chance he raises the whistleblowing question at a large group meeting that itself has a confidentiality expectation.

* * * * * * * * * *

On Article 7: It can be removed without causing any damage to the outlined whistleblowing procedure. Why?

• Under Article 5, member states must process whistleblowing reports where consent to distribute it to the employer is denied.
• If consent is granted and the employer handles the report in compliance with Article 2, then no offence under WA law is committed.
• If consent is granted and the employer does not handle the report in compliance with Article 2, then under GA#390, whistleblowers can report their employers' failure to handle reports according to Article 2's guidelines to the police, and the police will then use their WACC liaison point to instigate an IAO hearing per GA#440. (Should there be any concerns that GA#440 does not apply to private employers because it only explicitly mentions the state, it can be reasonably argued that in such cases, the state has failed to ensure that the employer did not comply with WC's Article 2.)
• If consent is denied, the member state must directly investigate the report. If the member state's investigation complies with Article 2, no offence is committed. If the investigation does not comply (or simply never happens), a police report can be filed against the state, and the police will follow the report up with the WACC. The WACC will then bring a hearing with the IAO, and in such an event, the legal grounding for fines and sanctions is even clearer.
• Therefore, every investigation into whistleblowing will either comply with Article 2, or it constitutes non-compliance with WA law (i.e. a crime that can be reported to the police, who will report it to the WACC, who will report it to the IAO, who will decide on sanctions). In either case, there is such a strong incentive for the member state or employer to investigate the report adequately that the GDAA will never be a necessary backstop.