Intellectual Property Law

Intellectual Property Law

Question 2: Critically discuss the so called 'whistle-blower exception' within the wider ambit of the defence of public interest available in the law of breach of confidence.

Introduction

Over the past 25 years the topic of whistleblowing has been turned around from being such a rare occurrence that over significant time periods only single cases would probably have been quoted to an enquirer, to the present when more numerous cases would readily flow off the tongue, and whistleblowing has achieved an unprecedented degree of political and organisational respectability, although that is not to say that some degree of ambivalence does not remain (Vinten, 1993). The 1980s and 1990s saw civil servants Clive Ponting and Sarah Tisdall break the Official Secrets Act in what they perceived as the public interest; disasters such as the Lyme Bay canoeing tragedy with loss of young life, the capsizing of the Herald of Free Enterprise ferry off the coast of Belgium en route to England, and the oil-rig Piper Alpha conflagration in Scotland; abuses by staff of criminally insane patients at Ashworth Special Hospital, the Beverley Allitt murders of babies in a maternity ward, and child abuse in residential homes and by religious orders. There were either those in the know at the time frightened to speak out, or discouraged from doing so. Concern has been expressed at the inadequacies of self-regulation by the medical and dental professions in the light of GP Harold Shipman's mass murder of countless of his female patients, and his conviction for murder in February 2000. Some dentists who have maltreated patients remain in practice, and the General Dental Council welcomed talks with the Minister of Health about increasing its regulatory function, which did not invariably serve the patient well.

Whistle blowing

There is no universally accepted concept of whistleblowing. A broad definition would encompass disclosure by employees and former employees of malpractice, as well as illegal acts or omissions at work. The charity Public Concern at Work (PCAW) offers help and free legal advice to people who have “a concern that something seems to be seriously wrong, illegal or dangerous which threatens the public interest”. Although some writers do not accept that internal disclosures amount to whistleblowing (Jubb, 1999), there are good reasons for drawing a distinction between internal and external reporting. Internal reporting offers advantages to employers, workers and the general public. The employer is given the opportunity to deal with a concern without outside pressure or publicity. From the worker's point of view, once a matter has been raised externally, they may be seen as an adversary and more likely to suffer retaliation. Hopefully, the public gain from the speedy rectification of wrongdoing without the need for expenditure by government agencies (Lewis, 2001).

The classic cases

An early example, which received huge media coverage at the time, was Stanley Adams. In 1973 he blew the whistle on trading practices of his pharmaceutical company, Hoffman-La Roche, which contravened European law (Adams, 1984). In his earlier career with the company he ...