Nudge Theory and Legal Protection of Whistleblowers

Abstract

The issue of whistleblower protection has been gaining more attention in recent years, especially after the passing of Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of persons who report breaches of Union law. However, there is a fundamental question as to whether the regulations are sufficient to provide real protection for whistleblowers in organizations. In this regard, it seems crucial that the various actors (legislators, managers, employees) work together to create an appropriate social environment. In this context, it is worth considering the use of knowledge of human decision-making processes, with particular emphasis on the possibility of modifying choice architecture and influencing decisions without imposing specific solutions. Nudging can be used in the “foreground” of legal regulation, by adjusting the social environment in such a way that legal regulation can work effectively. The paper provides an introduction to the application of nudge theory in the context of legal protection of whistleblowers.