Malice and Whistleblowing

Abstract

Whistleblowing legislation and corporate whistleblowing policies typically prescribe that reports of wrongdoing must be made in “good faith.” Sometimes this requirement is stated in the negative, that reports made with “malice” or “bad faith” will be disqualified from investigation or protection, or both. Although malice appears to be a popular and effective screening instrument, if not a strong signal to deter potential whistleblowers, the rationale for the no-malice rule is rarely articulated by legislators and policy drafters. Definitions in whistleblowing law and policy are hard to find. Is someone who personally seeks justice and an end to wrongdoing an actuator of malice? Given the no-malice rule, are individual and personal victims of wrongdoing ever permitted to blow the whistle? How much malice is required to disqualify a report, or is an all-or-nothing approach in effect by default? What is the process for preliminary determination of malice or good faith when a report is received? The good faith threshold standard, which focuses entirely on the messenger and not on the message in any way at all, may not be well understood by legislators, policy makers and whistleblowing administrators. It is likely a standard that is unevenly applied in practice. This article critically analyses the no-malice rule and recommends discarding it as a matter of effective whistle blowing law and policy.