Are Latin America’s New Whistleblower Laws Working?

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Are Latin America’s New Whistleblower Laws Working?

Are Latin America’s New Whistleblower Laws Working?
From Latin America Advisor Newsletter
Published by The Inter-American Dialogue
May 8, 2017


Gene M. Smith, President and Co-Owner of Smith Brandon International, Inc. was one of the contributors to to a Q&A from the May 8th issue of the Latin America Adviser Newsletter published by The Inter-American Dialogue. Each of the contributors were asked to answer the question:

"Last year, Mexico enacted sweeping changes to the country’s anti-corruption regime, including new whistleblower protections for individuals. Also last year, Argentine authorities extended special benefits to whistleblowers, such as reducing the length of prison sentences, when they report certain types of public corruption. What is the state of whistleblower laws in Latin America and the Caribbean? Are such laws effective ways to encourage reporting corruption and allowing people to speak up when they see wrongdoing? What best practices in protecting whistleblowers need to be replicated, and what flaws in the system should be corrected? Should whistleblowing laws apply differently to the public and private sectors?"

Gene's answer is reproduced below:

“Let’s be practical: whistleblower protection is a step in the right direction. Too many business communities across the Americas follow the tradition-honored rule of ‘that’s how we’ve always done it.’ To break some of those hidebound rules and practices, which may include pay-offs or kickbacks, concrete measures have to be defined, set up and implemented. Complications immediately arise when considering the whistleblower: who is this person? What is his or her background, and does that include access to information disclosed? What about motive, which could be interest in best practices, concern for the common good, commitment to principles of corporate governance or professional or personal ax-grinding? A soft-landing should be available to the informant who has the fortitude to step forward, who will be forced to adjust to a separate bureaucracy—where the oversight agency and law enforcement may speak a different language and move at an unknown pace, sometimes eager and sometimes reluctant to proceed. That soft-landing should allow for anonymity, at least to some degree; an identified point of contact, to stop the bureaucratic shuffle and the repetition or duplication of reporting; and some legal status that allows for a personal remedy for the whistleblower, who may be betrayed by the system. Mexico has taken steps to protect its whistleblowers with major new legislation, including the establishment of an independent prosecutor. Argentina and Brazil have reduced penalties for whistleblowers who assist in anti-corruption cases. Some new laws may be beneficial; some may need to be tweaked over time. All provisions for whistleblower protection would benefit from review and comparison on what is working and what is not. Meanwhile, a good starting point might be a recent study (2014) on ‘Whistleblower Protection Laws in G20 Countries’ and its call for ‘Priorities for Action’ (sponsored by Blueprint for Free Speech, among others).”


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