International organizations have been increasingly highlighting whistleblower programs as a means to unveil unlawful activities.
In 2019, the European Commission adopted a package of measures to strengthen whistleblower protection in the European Union (Directive 2019/1937). In 2021, the Organisation for Economic Cooperation and Development (OECD) updated its Anti-bribery Recommendation for the first time in more than a decade to improve whistleblower’s protection guidelines, among other provisions.
In Brazil, legal measures to protect whistleblowers date back to the 1990s. Since then, most Brazilian laws have been just providing for whistleblower’s identity confidentiality and waiver of liability.
An example is the Federal Act No. 8,443/1992, which attributes duties to the Federal Audit Court, such as: (i) confidential treatment of disclosures; (ii) full waiver of liability of whistleblowers, except in the case of bad faith reports; and (iii) confidentiality of the whistleblower's identity.
Likewise, the Decree No. 6,029/2007 establishes the protection of whistleblower’s identity before the Brazilian Commission of Federal Government Ethics.
In 2011, the Federal Act No. 12.527 amended the Federal Civil Public Servants Act (Federal Act No. 8.112/1990) to provide for the waiver of liability of the federal public servant who reports misconducts within the workplace.
The Brazilian Anti-Corruption Act (Federal Act No. 12,846) came into force in 2013 and lists the existence of internal mechanisms to encourage wrongdoings reports as a situation that could mitigate sanctions. Although Brazilian Anti-Corruption Act does not expressly address whistleblower protection issues, the Brazilian Office of the Comptroller General (“CGU”) assess the existence of internal antiretaliation measures in the evaluation of compliance programs.
In 2014, CGU launched the CRG/OGU Normative Instruction No. 1, setting up guidelines for the confidentiality of whistleblower's identity.
Decree No. 8,420/2015, which regulated the Brazilian Anti-Corruption Law, specifically lists the existence of whistleblower protection measures as a fact that could mitigate sanctions imposed under the Federal Act No. 12,846/2013.
Regarding public servants, the Federal Act No. 13,303/2016 cautions that public companies and semi-public companies must have protection measures to prevent retaliation against anyone who access internal whistleblower channels.
In relation to the Federal Public Ombudsmen, the Federal Act No. 13,460/2017 establishes the restriction of whistleblower’s identity access. Moreover, the Decree No. 9,492/2018, which regulated Federal Act No. 13,460/2017, sets forth: (i) maintenance of data and personal information protection when certifying the identity of whistleblower; (ii) training in ombudsman activities and in the protection and defense of public service users; and (iii) protection of the identity and of the elements that allow the whistleblower identification.
Thereafter the Federal Act No. 13.608 came into force in 2018, the debate around the whistleblower protection in Brazil was reheated. The Act No. 13.608/2018 enshrined the right of any person to report information on crimes against the public administration, administrative offenses or any actions or omissions harmful to the public interest. However, Federal Act No. 13.608/2018 set forth a single whistleblower protection measure back then: the whistleblower’s data confidentiality.
In the same sense, Ordinance No. 292/2019 of the Administrative Council for Economic Defense (CADE) determined the confidentiality of the identity of the whistleblower “in good faith” for a period of one hundred years.
The Decree No. 10,153/2019 establishes that the units of the Federal Ombudsman System must implement the necessary measures to receive, forward wrongdoing reports and protect the information received.
Yet, only the Federal Act No. 13,964/2019, which amended Federal Act No. 13,608/2018, sets forth more robust measures to protect whistleblowers, such as: (i) full protection against retaliation, including arbitrary dismissal, unjustified alteration of functions, imposition of sanctions and remuneration losses of any kind, withdrawal of benefits and refusal to provide positive professional references; (ii) waiver of liability, unless knowingly presenting false information or evidence; (iii) the identity confidentiality; (iv) protection by the measures provided for in the Witness Protection Act; (v) the designation of retaliation as a serious disciplinary offense, subject to dismissal for the benefit of the public service; and (vi) double compensation for material damages caused by actions or omissions resulting from retaliation.
Besides, under the Federal Act No. 13,964/2019, whistleblower who discloses crimes against the public administration are eligible to a reward of up to 5% of the amount recovered.
Also, in December 2020, the Federal Government launched the National Anti-Corruption Plan, which establishes goals for the regulation of mechanisms to defend whistleblowers’ rights and the protection and safeguarding of information addressed to the Federal Ombudsman System.
Given this scenario, there is a clear trend to develop new mechanisms for protecting whistleblowers in Brazil. The Federal Act No. 13,964/2019 enactment strongly boosted the discussions around the best practices regarding antiretaliation measures, despite of the gaps of whistleblower protection in Brazilian framework.
Nevertheless, the recognition of the value of whistleblower safeguards as tool to encourage reportable wrongdoings and enforce Anti-Corruption laws. seems to be taking place in some bolder bills presented at the Brazilian National Congress for the past years.
Follow LexTalk World for more news and updates from International Legal Industry.