Often times, the utility and legitimacy of anonymous reports is questioned in discussions about how to protect individuals from (potentially false) accusation of misconduct.
Many think that false accusations are the logical consequence of allowing anonymous reports to be made, simply because the reporter doesn’t have to worry about repercussions.
This argument, which in itself is legitimate, has had far-reaching consequences:
- The Dutch Labour Foundation (STAR)’s model policy from 2003 does not allow anonymous internal reports;
- The French privacy authority (CNIL) has been strongly opposing the acceptance of the whistleblower section in the US Sarbanes Oxley Act on corporate governance which applies to US listed companies; the result has been a much weakened and difficult-to-implement compromise in France;
- This line has been continued on a European scale by the European Commission through the Article 29 Data Protection Working Party Opinion 1/2006; this opinion is visibly struggling with the issue of allowing anonymous reports;
- National privacy authorities in Europe are increasingly adopting this opinion.
With the introduction of the technical solutions mentioned previously, it is possible to address many of this concern about anonymous reporting; because the possibility to get into contact and stay in contact with the anonymous person would end the supposedly negative consequences of anonymous reports. Verification questions can determine the authenticity of a report, and detect and filter the false ones. These technical solutions bring a completely new perspective to the controversy surrounding anonymous reports, as they make it possible to:
- get in touch with the anonymous whistleblower;
- verify allegations;
- get more information from the whistleblower during the subsequent investigation.
Are anonymous reports still anonymous reports in the sense attributed to them by the Labour Foundation and the EU Working Party? And doesn’t this render the argument against making anonymous reports via anonymous letters or anonymous phone calls irrelevant?
By asking verification questions, these technical tools will allow false reports to be filtered out, thereby reducing the number of false accusations. In addition, these tools discourage false reports, as the verification questions make it clear that false reports will be excluded and make it more difficult for the person submitting false reports to continue their false story. They could easily become entangled in their own web of deceit, expose too much of themselves and then be identified.
A good whistleblower scheme could, therefore, contain provisions on the following:
- no longer take anonymous letters and phone calls outside the system into consideration; they could even be banned. Many organisations would appreciate if the board or chair of the supervisory board no longer had to handle anonymous letters;
- that a failure to answer verification questions makes the report and the reporter themselves suspicious;
- that someone who intentionally submits a false report is seriously violating the Code of Conduct, and faces sanctions if they are caught;
- that the person proven to have made a report in bad faith can be sued by the accused after possible identification.
However, these provisions can’t be used in whistleblowing procedures where asking more questions is impossible, because reports made in good faith may ultimately fail to be considered and therefore end up labelled as “false”. Threatening language will discourage reports made in good faith.