Directive (EU) 2019/1937 provides directions to Member States on ensuring the protection of whistleblowers. Without prejudice to any national law allowing anonymous reporting, it expressly provides the extension of the same protection given to whistleblowers to anonymously reporting persons. Such extension could offer a good opportunity to reconsider the Italian approach in dealing with anonymous reports, thus streamlining internal investigation processes.
Under Directive (EU) 2019/1937 of October 23, 2019 – the Whistleblowers’ Directive – which entered in force on December 16, 2019, Member States are required to prohibit any form of retaliation against whistleblowers, such as suspension, lay-off, dismissal, demotion, negative performance assessment, changes of duties and location, harassment and discrimination.
For the purposes of the Whistleblowers’ Directive, whistleblowers are reporting persons working in the private or public sector, including volunteers, trainees, employees, self-employees, shareholders and members of administrative, management or supervisory bodies, as well as any person working under the control of contractors, subcontractors and suppliers
Whistleblowers have acquired information on breaches of Union law in a work-related context – regardless of whether the working relationship was still in force at the time of the report. They can use internal reporting channels within the concerned entity or external channels set up the Member State under the Whistleblowers’ Directive.
HOW TO ACCESS PROTECTION
In order to access protection, whistleblowers must file a bona fide report through the internal or external channels set up under the Whistleblowers’ Directive.
This means that whistleblowers must have reasonable belief that the information to be reported is true and relevant for the purposes of the Whistleblowers’ Directive.
In the case of intentional disclosure of false information, Member States must provide proportionate and dissuasive penalties and measures for compensating damage resulting from such false reporting.
The Whistleblowers’ Directive applies to identified persons: this means that whistleblowers must disclose their personal information when reporting suspected Union breaches.
Indeed, the need to protect them arises from the fact that they expose their identities when reporting, facing the risk of retaliatory measures.
In this regard, the Whistleblowers’ Directive clarifies that anonymous reporting persons, who are subsequently identified and suffer retaliation, shall nonetheless have access to the protection offered to whistleblowers.
THE CURRENT LEGAL FRAMEWORK IN ITALY
The Whistleblowers’ Directive expressly states that its provisions do not exclude national laws that allow anonymous reports.
That is the case in Italy, the laws of which do not expressly prohibit the collection of anonymous reports (most recently Legislative Decree No. 179/2017).
Specifically, employers can collect and investigate anonymous reports provided that they contain detailed information on the potential misconduct, capable of identifying the suspected breaches and the potential guilty parties (e.g., time and place, persons involved in the event).
Accordingly, in line with the EU approach, the Italian Anti-Corruption Authority (ANAC) has clarified several times that anonymous reports do not fall within the scope of the Italian whistleblowing regulation, considering that the latter refers to employees disclosing their identity.
The ANAC approach has led to the following conclusions: (i) anonymous reports should be processed separately from non-anonymous reports, using channels other than the “official” whistleblowing hotline; and (ii) the protection granted to employees under the Italian whistleblowing regulation cannot be extended to those anonymously reporting misconduct, as the latter are offered general protection from discriminatory measures under Italian law.
The Italian Data Protection Authority, supporting ANAC in drawing up the whistleblowing guidelines (most recently with its opinion of December 4, 2019), shared ANAC’s same conclusions in the operative guidelines issued on December 14, 2018.
Note that ANAC’s whistleblowing guidelines only refer to employees in the public sector. However, they offer general principles that are also relevant for private entities and indicate best practices.
THE POTENTIAL IMPLICATIONS IN ITALY
The above conclusions need to be reconsidered more thoroughly in light of the Whistleblowers’ Directive, which extends the protection of whistleblowers also to anonymous reporting persons who are identified during investigations.
Considering that anonymous reporting persons must be treated as whistleblowers once their identity has been revealed, there could be room to argue that there is no actual need to treat their report without using the “standard” whistleblowing channel.
Rather, it would be very advantageous to align the collection and investigation paths in the two situations to avoid reconverting investigation procedures on anonymous reports into “standard” whistleblowing investigation procedures once the reporting persons become known.
The Whistleblowers’ Directive could be a good opportunity for the Italian legislator to provide specific regulations on how to treat anonymous reports.
Our expectation is that the implementation law will standardize all reporting channels (making no distinction between anonymous and non-anonymous reports), thus simplifying the requirements employers must meet and streamlining internal investigation processes.