Whistleblowing legislation and reporting on research misconduct: A case for mutual learning

ABSTRACT

Regulations on reporting research misconduct have undergone a remarkable process of development since the 1980s. At the same time, many states have also developed legislation governing the receiving of alerts and for protecting whistleblowers against reprisal. Although these two bodies of legislation share the aim of organizing the practice of reporting, they have been developed in isolation from each other, and without sufficient thought as to how they should be linked. Based on an analysis of European Union law and its transposition in France, this article identifies the convergences and divergences between whistleblowing legislation and the reporting of research misconduct. It then looks at the contributions that each body of law can make to the other, both in terms of the procedures applicable and the protection afforded to whistleblowers. The lessons learned from the comparison of whistleblowing law and the procedures for reporting scientific misconduct allow for the identification of avenues for improvement.

KEYWORDS:

• whistleblowing legislation
• research misconduct
• procedure
• protection of whistleblowers
• research integrity officers

Acknowledgments

This article has benefited from scientific discussions held during the seminars of the CRISP research project (CRISP – Addressing the challenges of research integrity in scientific practices, coordinated by Stéphanie Ruphy). The author thanks the members of the research project for their openness to interdisciplinary engagement. The author is particularly grateful to Thibaud Boncourt, Nicolas Klausser, and Jérôme Michalon for their comments on earlier versions of this article, and to the anonymous reviewers of the journal for their time and attention. Special thanks go to Rafael Encinas de Muñagorri for his generosity and support in accessing documentation on the early development of research misconduct regulation.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. Following the Corvol report (Corvol 2016), France has introduced regulations requiring universities and research institutions to comply with research integrity requirements. Law No. 2020–1674 of 24 December 2020 and Decree No. 2021–1572 of 3 December 2021 impose on them the appointment of research integrity officers, the implementation of reporting procedures, and the provision of training on research ethics and scientific integrity for doctoral students. Furthermore, PhDs must take an oath when defending their thesis to respect the principles and requirements of research integrity throughout their professional career, whatever the sector or field of activity (decree of 26 August 2022).

2. The revised version of the Code published in 2023 follows the same line, albeit in a less straightforward manner. While the Code identify “due regard for the health, safety and welfare of the community, their collaborators and other parties connected with their research” as “good research practice” (2.4), it maintains a definition of research misconduct centered on scientific knowledge.

3. Decree no. 2021–1572 of 3 December 2021. Similarly, the French Office of Scientific Integrity (OFIS) – which does not have an operational role as RIO but rather acts as an observatory of practices and as a coordinator – is only competent for questions of scientific integrity, “excluding disciplinary and penal questions relating to the treatment of breaches of scientific integrity” (circular of the Secretary of State for Higher Education and Research, no. 2017–40, 15 March 2017).

4. Law no. 2016–1691 of 9 December 2016, amended by law 2022–401 of 21 March 2022, and decree 2022–1284 of 3 October 2022.

5. The same person may act as both whistleblower and ethics officer (Decree 2022–1284 of 3 October 2022, art 5 II).

6. Law no. 2013–316 of 16 April 2013.

7. However, reports that infringe national defense secrecy, medical secrecy, the secrecy of judicial deliberations, the secrecy of judicial investigations or enquiries, or the professional secrecy of lawyers are not protected.

8. This avenue is being explored, for example, at the National Institute of Health and Medical Research (Inserm) as part of the LORIER programme (https://lorier.inserm.fr/).

9. The effectiveness of these time constraints is, however, conditioned by the sanctions that each Member State of the Union may adopt, the Directive leaving this prerogative to the States (Abazi 2020, 653).

10. Protected matters under French law are information relating to a crime, an offense, a threat or harm to the general interest, or a violation or an attempt to conceal a violation of an international commitment duly ratified or approved by France, of a unilateral act of an international organization taken on the basis of such a commitment, of the law of the European Union, of the law, or of the regulations (Law no. 2016–1691 of 9 December 2016, Art 6).

11. The Directive defines “facilitators” as “a natural person who assists a reporting person in the reporting process in a work-related context, and whose assistance should be confidential” (Art 5). French law takes an even broader view, by extending facilitator status to nonprofit legal persons.

Additional information

Funding

This work was supported by the French Agence Nationale de la Recherche under Grant ANR-20-CE27-0016.