Whistleblowing and Wikileaks

Jul 27, 2010

Over the weekend a number of United States intelligence reports were leaked to the public alleging a close connection between Pakistan’s most powerful spy agency and Taliban militants fighting NATO troops in Afghanistan.
On Sunday, the on-line whistle-blower, Wikileaks, released 91,000 U.S. military records dating between January 2004 and December 2009.
The reasons behind the information leak remain unclear.  However, we suspect that if the identities of those involved with the security breach are ever revealed, that they will seek the protection of any applicable “whistleblower” laws.
“Whistleblowing” is the term given to an employee’s unauthorized disclosure of information he or she honestly and reasonably believes violates the law, professional standards, or involves mismanagement, corruption, abuse of authority, or demonstrates a danger to the public or other employees.  In general, employees are prohibited from divulging or publishing his or her employer’s confidential information; however, in rare circumstances an employee will be allowed, or may be required, to disclose that information.  However, in whistleblowing cases, the courts must strike a balance between the interests of the employer in protecting their business against false accusations which would damage their reputation, and an employee’s right to exercise free speech without getting fired for doing so.
The Supreme Court of Canada has not addressed the issue in an employment-law context, but in unionized workplaces the Court has indicated that in certain circumstances the employee can “go public” so long as he or she has exhausted all internal whistleblowing mechanisms.
Employees may be protected in their whisleblowing based on legislation and the Criminal Code but will want to consider speaking with counsel to determine the availability, or extent, of legislative protection.

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