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Confidentiality in the internal whistleblowing process

Readtime 1 min | Writer: Selma Treu Breimo

Skjermbilde 2023-10-27 kl. 15.18.03

The Working Environment Act has a provision on confidentiality in § 2A-7. This provision is limited to cases where a report has been made to public authorities. In the preparatory work for the Working Environment Act, it was proposed that a similar confidentiality obligation should apply to whistleblowing cases in general, but this proposal was not followed up.

Therefore, there is no general legal basis regulating confidentiality in whistleblowing cases outside those handled by public authorities.

However, there are good reasons for treating whistleblowing cases outside public authorities in the same way. In internal whistleblowing cases, one should therefore fall back on balancing important considerations, such as: Loyalty between employer and employee, Privacy concerns (avoid unnecessary dissemination of information), The principle of ensuring a safe working environment.

Therefore, there is often reason to treat information about the whistleblower and the person being reported, as well as the content of the report, as confidential information.

The most important aspects to keep in mind when deciding who to share information with is:

  • One should limit the harmful effects that might follow from the report 
  • Consideration must be given to the employer's duty to protect the whistleblower against retaliation, see Working Environment Act § 2A-5
  • The duty to otherwise maintain a safe working environment
  • Potential negative effects for the reporter and the person being reported
  • The reputation of the company

Who has the right to access in a whistleblowing case?

The person being reported has the right to present their version of the case. Therefore, they are entitled to see the content of the report so they can defend themselves. However, it must be clarified that neither the whistleblower nor the person being reported has the right to access the actual case processing procedure. This follows from the Personal Data Act § 16 e, which states that the right to access does not apply to text prepared for internal case preparation.

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Selma Treu Breimo

I Digitaliq jobber jeg hovedsakelig med juridisk rådgivning i forbindelse med utviklingen av de digitale verktøyene MittVarsel.no og TransparenyGate.com. Portalene skal hjelpe bedrifter og organisasjoner med å overholde Åpenhetsloven og Arbeidsmiljøloven.