Protecting Vulnerable Voices: A Comparative Analysis of Whistleblowers in Criminal Law

What happens when the most vulnerable voices in our society risk everything to expose the truth, only to be branded as criminals? This project proposes to conduct a comparative analysis of six whistleblower legislations – France, the Netherlands, Germany, Canada, the UK and the EU – concerning whistleblowers, with a particular focus on whether these laws adequately address vulnerable populations. The study is groundbreaking in its approach; although it is not the first to compare whistleblower legislation (e.g. Wolfe et al., 2014; Popescu, 2015), it uniquely applies vulnerability theory to analyze the legal framework surrounding whistleblowers.
Whistleblowers occupy a complex and often precarious position in criminal law. On the one hand, their behaviour is often criminalized under laws of professional secrecy and national security, which may see their actions as a breach of confidentiality or even a threat to state security. On the other hand, there is a growing recognition – both nationally and internationally (Connon, 2016; Kafteranis, 2020) – of the need to protect whistleblowers (Kaplan, 2001), with some legal systems beginning to make relevant exceptions to criminal laws. Such changes may include not only exempting whistleblowers from certain criminal liabilities but also, more robustly, criminalizing acts that threaten whistleblowers or obstruct their efforts to disclose critical information to the public or the authorities. Moreover, multinational corporations, transnational networks, and the ease of publishing content online have made whistleblowing a global phenomenon, making a comparative legal study both timely and essential. This consideration is particularly important in an era marked by globalization and digitalization, where whistleblowing is rarely confined to a single jurisdiction.
Existing legal frameworks tend to treat whistleblowers as standard individuals, often shaped by the high-profile cases of corporate insiders such as Edward Snowden – white, male, and typically in privileged positions within large corporations or government agencies (Bowers et al., 2012; Stolowy, Paugam & Londero, 2019). This approach overlooks the vulnerability of other populations, such as refugees, minorities, and marginalized groups, who may also engage in whistleblowing but face significantly different risks and challenges. Vulnerability theory (Fineman, 2010), which argues that legal systems should take into account the different vulnerabilities of various populations (Bedford & Herring, 2020), suggests that criminal law should not treat all individuals equally. Instead, it should accommodate the specific contexts and challenges faced by those who are less privileged, particularly when facing criminal justice, whether as witnesses, victims or defenders (Cooper, 2018; Dehaghani at al., 2023).
This project conducts a comparative analysis of five domestic criminal justice systems, focusing on how effectively relevant laws address the needs of vulnerable whistleblowers. In addition, the study examines the European Union's legal framework for whistleblower protection, assessing its impact on member states and its effectiveness in addressing the needs of vulnerable groups (Peroni & Timmer, 2013). Vulnerability theory has never before been applied in the specific context of whistleblower protection legislation, making this project’s approach particularly innovative. The working hypothesis is that, by comparing six legal systems on a large scale, the project can make a compelling case that current criminal law does not adequately address vulnerability. However, the complexity and breadth of this high-risk/high-gain analysis, involving large legislative datasets in different languages and legal systems, introduces a degree of uncertainty into the outcome, making the project both challenging and potentially groundbreaking. Ultimately, it aims to identify structural gaps in whistleblower protection, making a significant contribution to the development of more inclusive and equitable legal protections for whistleblowers globally.

What happens when society's most vulnerable people dare to reveal hard truths and end up labelled as criminals? Existing legal frameworks tend to treat whistleblowers as standard individuals, shaped by the high-profile cases of corporate insiders like Edward Snowden – white, male, typically privileged. This overlooks the vulnerability of other populations, such as refugees, minorities, and marginalized groups, who face significantly different risks and challenges. This XS project conducts a comparative analysis of six legislations – France, Germany, the Netherlands, the UK, Canada and the EU – concerning whistleblowers, with an innovative focus on whether laws adequately protect vulnerable populations.