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Whistleblowers beware - big risks in leaking information

The Dominion Post - TUESDAY, 23 October 2012

Few readers will recognise the name Paolo Gabriele, but they might know him as the Pope's ex-butler. Gabriele copied the Pope's private papers and provided them to a journalist who in due course published them.

He claimed he was motivated by a desire to root out "corruption and evil" which he alleged was at the heart of the Catholic Church, but ultimately Gabriele's actions led to his dismissal.

He has since been convicted of the theft of the documents and sentenced to a modest term in jail.

Gabriele is certainly not the first employee to be guilty of leaking his employer's confidential information. Nowadays, not only do employees often know a lot more about their employers than was the case previously but the speed at which information can spread has increased significantly.

Prince Harry's recent naked antics are a good example of just how quickly information can flash around the world. In the old days, perhaps only the prince's closest advisers would know and who would they tell? If they went to tell the editor of The Times, they would end up in the Tower and certainly nothing would be published. But how the world has changed.

Today, leaking information is in vogue. Overseas we have seen Wikileaks, while in New Zealand Nicky Hager's books relied in large part on leaked information. Hager's book Other People's Wars in particular is riddled with leaks which seem to have been largely ignored. Separate alleged incidents involving MFAT, the GCSB and ACC have also been featured heavily in the news.

Sympathy for those who leak information seems to be growing. However, employees found to be responsible face serious consequences.

Some years ago, Mrs X, an employee of the New Zealand Stock Exchange, leaked documents that suggested there were irregularities in the Stock Exchange's financial processes. These documents were tabled in Parliament by an MP.

The Stock Exchange hired a private investigator and alleged that Mrs X was responsible for the leak. Despite the MP saying that to the best of his knowledge Mrs X was not involved, the investigation by the Stock Exchange concluded that she probably was responsible. Mrs X was dismissed.

The law does recognise that there are certain situations where confidential information can be leaked. The key piece of legislation in this area is the Protected Disclosures Act which protects employees, both in the public and private sector, who "blow the whistle" on serious wrongdoing by their employer.

The act, however, requires an employee to first raise their concerns with their employer before they can go to an appropriate authority such as police, the Serious Fraud Office, the Ombudsman or in some instances, a minister of the Crown. The act does not protect employees who leak confidential information to the press.

Where the Protected Disclosures Act does not apply, courts may still find a way to protect employees who have leaked information.

In a case involving Air New Zealand, pilots were sued after they questioned the airworthiness of a certain aircraft leased by their employer in an article published by The Listener magazine.

Sir Robin Cooke, president of the Court of Appeal at the time, suggested it could be arguable in an extreme case, and as a last resort, that senior employees had an overriding duty to disclose serious doubts about the safety of an aircraft.

Similarly, the famous English jurist Lord Denning has suggested that an exception to the duty not to disclose confidential information exists.

In a case involving the exposure of an illegal price ring between laundries, Lord Denning held that the leaking of confidential information can be acceptable where there is "any misconduct of such nature that it ought in the public interest to be disclosed".

If the serious wrongdoing test under the whistleblower legislation is not satisfied, it would be a rare case indeed that follows Sir Robin Cooke's guidance.

However, it is clear that the public's view on this matter is changing. We now live in a new age where the rule of popes, monarchs and employers is no longer inviolate.

The speed with which information flows is only going to accelerate and employees will continue to be trusted with the confidential information of their employers.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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