Confidentiality and protection for whistleblowers
Trust depends on understanding both the protection available and its limits. Attorney confidentiality, contractual rules, and Germany’s Whistleblower Protection Act work together.
Confidential does not mean anonymous
In a confidential report, the ombudsperson knows your identity and protects it within the scope of the engagement and the applicable law. In an anonymous report, you do not give your name. Even then, the facts, documents, or technical circumstances may make it possible to identify you.
We handle identifying information with particular care and discuss its disclosure. We cannot promise guaranteed anonymity in every circumstance.
What the HinSchG protects
The Act prohibits retaliation where its requirements are met. In particular, at the time of reporting there must have been reasonable grounds to believe that the information was true and that the reported violation fell within the Act’s scope. Subsequent confirmation of every allegation is not required.
A person who suffers a work-related disadvantage after a protected report and claims that it resulted from the report may benefit from a reversal of the burden of proof, subject to the statutory requirements. The Act does not protect reports that are false intentionally or through gross negligence. Reporting does not automatically remove criminal liability for a person’s own involvement in an offense.
Where confidentiality has limits
Under the HinSchG, the identity of reporting persons must generally be kept confidential. The Act provides exceptions, however, including in connection with criminal proceedings or court decisions. Certain disclosures require separate consent. An exception of this kind does not amount to a blanket duty to disclose.
Attorney confidentiality and rights to refuse testimony must be assessed separately. In particular, they do not mean that every document held by an ombudsperson is protected from seizure. The German Federal Constitutional Court’s 2018 Jones Day decisions concern the limits of that protection in criminal proceedings; they do not establish a general prohibition on attorneys acting as ombudspersons.