This is what happened to me.
In 2015, I disclosed to regulators, the media, and on my website non-public information about my former employer, Blue Shield of California, which I believed showed the company was breaking the law. Blue Shield sued me for my disclosures, claiming they violated my confidentiality agreement. My lawyer tried to have the lawsuit dismissed, but the court ruled that whistleblower protections did not prevent Blue Shield from enforcing the deal against me for media and website disclosures.
Since I could not afford further litigation, I was forced to enter into a settlement which forbids me to disclose any further about the company and even forbids me to speak of certain facts about it which have already been reported. in the media because of my earlier denunciation.
Some Facebook critics have expressed hope that Haugen’s Facebook revelations would lead to a judgment day for social media like the one Big Tobacco faced. It’s a fitting analogy: Jeffrey Wigand, one of the most prominent corporate whistleblowers of decades, has worked through the media to trigger a public toll for the industry. Unfortunately for Wigand, even though he managed to deliver explosive revelations, his life was turned upside down in the process.
Wigand’s former employer Brown & Williamson sued him in 1995 over disclosures he made to reporters who allegedly violated his confidentiality agreement. While the company had to drop the lawsuits in 1997 as part of the tobacco industry’s $ 368 billion settlement of the multi-state litigation against it, the lawsuit – along with other retaliation from the company – did a heavy toll on Wigand.
Just the possibility of a lawsuit by the company to enforce its confidentiality agreement led to CBS killing off a 60 Minutes episode featuring an interview with Wigand. The network was set to air the episode when his lawyers warned he could be prosecuted for instigating Wigand to break his confidentiality agreement, prompting the media center to bottle a story alerting the public to a threat. important for public health. (CBS later aired the interview, but only after the the Wall Street newspaper had reported much of what Wigand had told 60 Minutes. The drama was memorably portrayed in the 1999 film The initiate.)
In the 25 years since Wigand’s denunciation, Americans have experienced a long series of scandals and corporate misconduct – from the recklessness of the big banks that caused the 2008 financial crisis to massive rigging. emission systems of cars by Volkswagen to deceive pollution tests. As the reach and power of big business has grown, we’ve found this to match the extent of the havoc they can cause. This has led to the passage of a series of corporate whistleblower protection laws, including the Sarbanes-Oxley Act provisions that protect employees of public companies, like Haugen, from lawsuits or other reprisals. if disclosed to Congress or regulators. But these laws lack the protection of media disclosures.
Some might wonder why such protection is necessary. Isn’t the ability to speak freely to legislators or regulators enough? No, not if we want whistleblowers to have the best chance of reforming harmful corporate behavior, which often requires, in addition to informing the authorities, exerting public pressure. It’s hard to imagine that Haugen would have generated almost as much momentum for Facebook reform as she did without her media disclosures.
In addition, unlike corporate whistleblowers, government employees who disclose wrongdoing already enjoy significant protection from media disclosures. The Whistleblower Protection Act prohibits retaliation against federal employees for disclosing wrongdoing to anyone, including the media. The Supreme Court has ruled that government employees at all levels have the First Amendment right to speak to the media on matters of public interest without fear of reprisal from their government employers.
The protection enjoyed by government employees for media disclosures is hardly absolute. Leakage of classified material, for example, is not protected. But the law clearly recognizes that such disclosures are an essential part of whistleblowing. As the Federal Circuit Court of Appeal noted, “the purpose of whistleblower protection law is to encourage disclosure of wrongdoing to those who may be able to act to remedy it, either. directly by the managing authority, or indirectly as in disclosure to the press.
Fortunately, we are now seeing some movement toward legal recognition of the public value of media whistleblowing by corporate employees – at least with respect to certain types of misconduct.
Last month, coincidentally just days after Haugen revealed herself in 60 Minutes as a Facebook whistleblower, California Gov. Gavin Newsom signed a bill that prevents employers from banning employees or exes -employees to speak publicly about unlawful harassment, discrimination or other mistreatment of employees. . Passed at the request of #MeToo activists and Pinterest whistleblower Ifeoma Ozoma, the law aims to “empower survivors to hold to account and prevent future abuses by perpetrators,” according to the project’s author law, California State Senator Connie Leyva.
The logic behind the bill, that public exposure forces accountability for current abuses and helps prevent future ones, also applies to corporate misconduct that victimizes customers, investors or the public. Imagine if every executive knew that any employee could publicly disclose any company action they believed was reasonably illegal. Would Facebook have acted the way it did? At the very least, this kind of environment would force business leaders to think more before breaking the law.
Corporate lobbyists may argue that protecting media disclosures is a bad idea because it would put vital trade secrets at risk. But just as public disclosure of classified government documents is excluded from whistleblower protection, certain types of corporate information could also be prohibited.
The sole purpose of not protecting media disclosures of illegal corporate wrongdoing is to protect corporations from liability. This is the political choice our laws are currently making. But with public admiration for whistleblowers and corporate skepticism, high as it is, lawmakers now have an opportunity to change that.
Whistle-blowing, as Frances Haugen has shown, has the potential to do a lot of good. But that potential cannot be fully realized if every business insider who plans to do what Haugen has done has to be a hero to do it.