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Draft of Proposed Whistleblower Protection Act Serves Only Inadequacies

When the World Intellectual Property Organization published the latest draft of their new Whistleblower Protection Act earlier in 2017, it was hoped that the new guidelines would meet the best-practice standards set by the Government Accountability Project. Sadly, the draft fails these standards by a wide margin, leaving global intellectual property systems participants, like those involved in patents, trademarks, and design, without cogent, equitable direction in the realm of whistleblowing.

What are the best practices?

The Government Accountability Project was originally developed in the 1920’s as an offshoot of the national trend to reduce corruption and graft on a national scale. Now, the project functions as a federal watchdog, auditing the yearly financial statements of the US Government. The project also produces many reports on topics such as auditing, health care, homeland security, and nearly every other aspect of government. The group developed a detailed list of twenty specific elements needed in any whistleblower policy:

  • Context for Free Expression Rights with “No Loopholes”
  • Subject Matter for Free Speech Rights with “No Loopholes”
  • Right to Refuse Violating the Law
  • Protection Against Spillover Retaliation
  • “No Loopholes” Protection for All Citizens With Disclosures Relevant to the Public Service Mission
  • Reliable Confidentiality Protection
  • Protection Against Unconventional Harassment
  • Shielding Whistleblower Rights From Gag Orders
  • Providing Essential Support Services for Paper Rights
  • Right to Genuine Day in Court
  • Option for Alternative Dispute Resolution with an Independent Party of Mutual Consent
  • Realistic Standards to Prove Violation of Rights
  • Realistic Time Frame to Act on Rights
  • Compensation with “No Loopholes”
  • Interim Relief
  • Coverage for Attorney Fees
  • Transfer Option
  • Personal Accountability for Reprisals
  • Credible Corrective Action Process
  • Review

How does the draft measure up?

Alas, there are grave inconsistencies between the aforementioned best practice guidelines and the new proposal. The first is that the Director General of the WIPO, responsible for sharing the draft, has himself been the subject of many reports of wrongdoing in regards to whistleblowers, including but not limited to direct retaliation. Furthermore, the same Director General is named in the policy as the sole official responsible for protecting future whistleblowers. Within the draft, there are other concerns, such as the mandate for an Ethics Officer who, rather than being an independent third party, is instead an employee of the Director General.

The draft also directly contradicts the best practice of ‘Context for Free Expression Rights with “No Loopholes”’ which states that protected disclosures should cover any disclosure the whistleblower reasonably believes to be accurate, or any report of retaliation the whistleblower believes to be true. The draft requires that the whistleblower must have “reasonable and demonstrable grounds.” “Demonstrable” in this context means irrefutable and concrete, which is a far cry from the information many whistleblowers have access to.

Finally, the draft doesn’t mention how presently pending cases will be addressed: pending cases involving alleged retaliation by the very same Director General. This bizarre draft seems aimed at protecting the current Director General’s interests, creating a more difficult barrier for whistleblowers to overcome, and potentially limiting the redress against retaliation whistleblowers experience.

At Plattner Verderame, P.C., we understand the courage it takes for whistleblowers to come forward and their selfless devotion to helping others, even at the risk of personal employment, reputation, or financial security. Our lawyers fight for the rights of all whistleblowers.  For more help, please contact our dependable Phoenix qui tam lawyers by calling 602-266-2002 or filling out our contact form.