I see a lot of stories about companies threatening legal action against, or accusing of criminal behavior, people who discover the company doing something illegal and report it.
Are they just lashing out, or is there some legal defense they can make by showing that the initial discovery of their wrongdoing happened through some illegal or punishable (by a civil court) action?
I don’t think it’s a legal defense so much as an ad hominem attack on whomever is making the initial accusations, i.e. “you can’t trust what he says, he’s a criminal.”
And if someone committed a crime against the company while in the process of uncovering dirt on said company, then it’s not unreasonable to expect the company to file criminal charges against that person.
It’s not a legal defense, but it helps the company by:
In some jurisdictions (such as in the US), evidence discovered through police misconduct is often not admissible. This generally applies only to evidence discovered by official government representatives like police rather than an average Joe. So if Big Ego Local Cop breaks in to your apartment on a hunch that you might possibly have some weed in your desk drawer and he finds some, your lawyer can probably get you acquitted or the charges dropped. If a garden variety criminal broke in, found the weed, and then turned it over to local police and said he found it in your apartment, that could possibly be used against you, but you also have the benefit that the witness may not be seen as reliable.
This is what I like to call the “Judge Judy” defence. “He ripped me off on the repair job so I’m entitled to steal his TV.” Two wrongs don’t make a right.
If the police use illegal means to obtain evidence against someone, then that evidence and anything else found as a result of that evidence generally cannot be used in court. If the company ends up in court and the major witness against it is a whistleblower, then as M. Elf says, attacking that witness’s credibility could help their case; in the court of public opinion, painting your critic as a despicable person motivated by greed, revenge, or sour grapes to fabricate a story probably might help your case too.
Once independent evidence corroborates their story, accusations false or true probably don’t help the case. After all, most whistleblowers do have an axe to grind. Focussing on that issue will simply prove that the company not only is guilty of whatever (polluting, financial irregularities) but also treats their people so badly they want to quit and take revenge.
OTOH, never underestimate character assassination as the only revenge available to a management caught in flagrante. “I’ll see you never work in this town again!”
Certainly that defense didn’t work for the management of Archer Daniels Midland, whose price-fixing scheme was exposed by an employee who was concurrently embezzling millions from the company.
Forget future whistle-blowers – It is often meant to discourage the current whistle-blower through “we can make your life really bad if you try to see your case through”.
GM famously responded to Ralph Nader’s seminal work “Unsafe At Any Speed” (Corvair - it really was a dangerous piece of junk) was to hire detectives to find dirt on Nader.
And they wonder why the kids all bought VW’s…
“We’ll worry about imports when they get 2% of the market” - circa 1960 GM brass
Yeah, I’m pretty sure it’s just a sort of Mutually Assured Destruction blackmail scenario. “I’ll tell everyone you did THIS”, “well then I’ll get you thrown in prison for THIS” and thus the parties are at an impasse.
This can also be invoked if it’s a somebody who doesn’t work for the government but is acting on behalf of a government employee. For example, if a police officer tells one of his snitches to search a guy’s house, it’s still considered an inadmissible search even though the guy who did the search isn’t a police officer.
Doesn’t whistleblowing usually involve acts of disclosure of confidential information/trade secrets in violation of an employment contract or even a criminal statute, that would, absent the justification of whistleblowing, actually be illegal?
In that case it would make sense for an entity expecting to be partly or fully exonerated on the accusations to prepare a case against the person making these disclosures.
Most confidentiality agreements are contractual. So you can be sued for violating your contract but not charged with a crime.
Sounds good, but a contract that involves something illegal is void and therefore unenforceable.
So let’s agree that the original confidentiality agreement is legal with the standard “don’t talk about what we do or else” mumbo jumbo.
Ok so far. But what if it turns out that “what we do” is break into houses and steal stuff?
Does the contract become illegal at that point? Or does some other principle get kicked into play?
Can you cite us some of those cases for reference so we can discuss the specifics?
Often, yes, the company is simply lashing out and trying to protect itself.
Whistleblowers are typically afforded legal protection against prosecution. Regulatory agencies want to encourage people to report illegal activities. Even if you are involved in the criminal activity yourself, you can be afforded protection or even immunity if you are the one who brings the case to the authorities. Once an investigation has begun, however, it’s generally too late to say “me too! I want to be a whistleblower!”
It doesn’t protect you from your career possibly being fucked, however.
“The person who caught us is a criminal” is not a legal defense. It may speak to the reliability or motives of the witness, but if it were a defense, mob guys would never go to jail.
That would be helpful, wouldn’t it?
This first story is the one that prompted this question. You can read the full story here: Reporters use Google, find breach, get branded as “hackers” - Ars Technica
but this is a summary:
All the other examples I can think of merely involve the misbehaving company suing (or threatening to sue) the reporter/blogger/commenter/etc. for slander, defamation of character, or the like (which are merely civil actions). The best example I can think of right now for this is Prenda Law’s response to Alan Cooper. I’m sure anybody that’s been following tech news recently can probably name a few more.
I was on a jury in a burglary case. The guy admitted to being in the house, but not to stealing anything, so he had plead guilty to criminal trespass. The procecutor took him to trial to determine if he was guilty of the more serious crime of burglary. When the cops arrived, he hid in a crawlspace and refused to come out, so they had a police dog drag him out by his ankle.
The relevant facts of the case were pretty quick to present, but the defense spent a lot of time talking about how large and scary the dog was, and the small injury the defendant sustained from being bitten.
We, the jury, quickly decided to ignore all of that, as the dog was not on trial. But I could see the defense was hoping we’d pay attention, and possibly give the guy a break because he’d had to deal with this mean old dog. [Based on other evidence presented, we ended up finding him guilty.]
So, not a legal defense and the dog was in no way a criminal, but a defense strategy based on how and by whom the criminal was caught. I could see it being tried in other cases, and even being successful.