Who counts as a whistleblower and who doesn’t

It is easy to assume that the Whistleblower Protection Act 2010 protects anyone who discloses information of alleged wrongdoings or the irregular actions of a person or persons in a company or an organisation.

The spirit of the whistleblowing protection law lies in the protection of someone who discloses information of irregularity, be it corruption or improper conduct in the public and private sector, that may invite a backlash while the information is being investigated.

However, the scope of the act only covers persons who makes a complaint to the relevant enforcement agencies which includes any ministry department, agency or body of the government including local authorities.

The immediate protection is the confidentiality of the identity of the person, which includes his or her name, address and place of work.

Secondly, he will be provided immunity from civil and criminal action, and thirdly, protection against detrimental action. Detrimental action may mean disciplinary action or prosecution of the person against whom the disclosure of improper conduct has been made.

However, the law does not cover those who openly disclose information in public, for instance to the media and on social media platforms. In the case of Lalitha Kunaratnam, she cannot claim whistleblower status based on several criteria.

She wrote two articles, “Business Ties Among MACC Leadership: How Deep Does it Go?” (Part 1 and 2), based on information she got from publicly available sources (shares on past annual reports) and using that, she insinuated wrongdoing and collusion on the part o- several high ranking MACC officers.

Firstly, she does not come under the whistleblower protection simply because her identity is already willingly revealed.

Secondly, a whistleblower is usually someone employed within an organization who exposes the wrongdoing in that body and fears backlash from the employers or authorities.

Thirdly, the disclosure is blasted out on social media where anyone can have access. She did not make a complaint to the relevant enforcement authorities where her identity would be automatically protected to prevent detrimental action from those affected by the disclosure of the information. Detrimental action can come in the form of lawsuits or even bodily harm that may or may not be directly proven to be connected to the disclosure.

Hence, the particular law in question does not provide that guarantee of protection if the complainant has exposed his or her own identity along with the information, simply because the source of backlash can come from anywhere and anyone.

Finally, the article is an insinuation of “business ties among MACC leadership” based on publicly available information, i.e, the shares of Azam Baki. In accordance with the law, the person who is aggrieved by her article has the legal and constitutional right to file a civil suit for defamation to protect his reputation. The Defamation Act 1957 provides the guidelines for determining what is and what is not defamatory where the burden of proof lies on the plaintiff to prove that the statements were untrue, and had imputed a “dishonourable or discreditable conduct” on the part of the plaintiff.

In the case of Azam filing a civil suit against Lalitha, he has every right to do so under the law.

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.