_“Whistleblowing” is law!

The Italian Chamber of Deputies has finally approved the law on “whistleblowing”, protecting those who expose wrongdoings in public Administrations, public entities, private entities subject to public control as well as private companies subject to the s.c. Compliance Model provided by Legislative Decree no. 231/2001.

With particular reference to private companies, the new law modified the provisions regulating private entities’ administrative accountability, providing the obligation to amend the Compliance Model as below:

  • Providing one or more communication channels allowing those with representative, administrative, spervision, management and control functions, as well as their subordinates, to expose, through detailed reports based on precise and clear evidence, unlawful behaviors or violations of the Compliance Model that they found out about while performing their functions (the whistleblower’s anonymity is ensured during the management of the information received);

  • Providing a communication channel ensuring, through IT methods, the anonymity of the whistleblower’s identity;

  • Prohibiting retaliatory and discriminatory acts against the whistleblower, as a consequence of his exposure;

  • Providing disciplinary sanctions for the violations of the whistleblower’s protections;

  • Providing disciplinary sanctions for the whistleblower making unfounded allegations, acting intentionally or with gross misconduct.

The Law also provides for both the whistleblower and the Unions to report retaliatory acts to the National Labor Inspectors.

In addition, dismissal, change of duties and any other discriminatory or retaliatory act served on the whistleblower after the exposure is deemed null and void, and the burden of proof is on the employer, who has to demonstrate that such action was not taken because of the whistleblower’s revelations.

Finally, the Law approved by the Chamber of Deputies and waiting to be published in the Official Journal, also provides that the above exposure represents a just cause to disclose information covered by duty of secrecy under article 326, 622 and 633 of the Italian Crime Code, and art. 2105 of the Italian Civil Code. This principle does not apply for those who became aware of the wrongdoings in their professional consultancy capacity with the company, the entity or the related person.

This new Law, aimed to protect the whistleblowers and to encourage the unmasking of wrongdoings, requires important compliance obligations for companies operating in Italy, called upon to update the Compliance Model drafted under the previous law, as well as to integrate and harmonize their grievance, audit and whistleblowing policies already in place.

In this regard, it is important to balance the abovementioned goals with the accused’s right to a defense, to avoid violations or restrictions, as a result of the protections granted to the whistleblower, especially the right to anonymity.

by Olimpio Stucchi e Marco Tesoro