The term ‘whistleblowing’ refers to the act by which an individual within a public or private organisation confidentially reports unlawful conduct, serious irregularities, or breaches of regulations occurring in the workplace. The reporting person, also known as the whistleblower, plays a key role in preventing and uncovering wrongdoing, thereby contributing to the proper functioning of institutions and corporate compliance. Below, we examine how the law protects whistleblowers.
1. WHISTLEBLOWING: A LEGAL PERSPECTIVE ↑
In Italy, the regulatory framework has developed in two fundamental stages:
- Law 179/2017, which introduced specific protections for whistleblowers in both the public and private sectors;
- Legislative Decree 24/2023, which transposed EU Directive 2019/1937, establishing common minimum standards for the protection of reporting persons in Member States.
The latter represents a pivotal step, as it expanded the subjective scope of application and introduced precise obligations for companies with more than 50 employees, including the establishment of internal reporting channels.
The legislation aims to guarantee both the confidentiality of the reporting person and their protection from retaliation, with a view to systemic deterrence. However, despite being an important safeguard, whistleblowing presents practical limitations and interpretative complexities that necessitate a careful reading of the regulations and case law, particularly concerning the intersection between employee protection and the legitimacy of employer actions.
2. WHISTLEBLOWER PROTECTIONS IN EMPLOYMENT RELATIONSHIPS ↑
With the entry into force of Legislative Decree 24/2023, the Italian system for whistleblower protection underwent a profound evolution, placing particular emphasis on the employment law dimension of protection. The decree stipulates that protection against retaliation only applies if the reporting person had reasonable grounds to believe the information communicated was true (Article 16).
Therefore, a generic or unfounded report is not sufficient; the report must meet criteria of good faith and plausibility. In the event of retaliation, the burden of proof is reversed (Article 17), and it is the employer who must demonstrate that the measure adopted (dismissal, demotion, transfer, or other) is not connected to the report. This is a cornerstone of the regulation, confirmed by recent Supreme Court case law. According to Supreme Court ruling no. 17266/2024, for a dismissal to be deemed unlawful due to retaliation, the retaliatory intent must be the sole reason for the measure. Furthermore, there must be a temporal connection between the report and the challenged act.
However, the regulation does not translate into absolute protection, and the reversal of the burden of proof cannot curtail the employer’s right to defence, guaranteed by Article 24 of the Constitution.
The balance between whistleblower protection and safeguarding the employer’s prerogative represents the heart of the system but simultaneously constitutes one of its structural limitations, especially in complex corporate contexts where decisions often have multiple causes.
3. WHISTLEBLOWING: LIMITATIONS AND POTENTIAL ABUSES ↑
One of the main limitations of whistleblowing arises from the potential misuse of the instrument by the reporting person, who might exploit the protection offered by law to pursue personal interests or to harm colleagues and superiors.
This risk has been repeatedly highlighted by both legal scholarship and case law. In particular, the Court of Cassation (judgment of 27 June 2024, no. 17715) clarified that protection does not extend to those who make a report for retaliatory purposes or personal gain. If an employee’s conduct is aimed at discrediting others or obtaining professional benefits, the report loses legitimacy and may become subject to disciplinary sanction. In other words, good faith must be the driving force behind the report.
The mere act of submitting a report does not guarantee immunity, and a strict correlation is required between the conduct and the purpose of protecting the public interest. The same principle was reiterated by the Council of State (judgment of 17 July 2023, no. 7002), which specified that unfounded reports or those motivated by internal disputes cannot benefit from the protections provided by the legislation.
This is a matter of great importance for businesses, which must adopt internal policies capable of distinguishing between genuine and instrumental reports. This is to prevent the whistleblowing mechanism from being perceived as an improper lever for pressure or conflict within the organisation.
4. CASE LAW ON THE BOUNDARIES OF WHISTLEBLOWING ↑
The scope of whistleblowing has been further clarified by recent case law, which has provided important guidance on behaviours that fall outside the protections provided by law. A notable example is the case examined by the Court of Cassation (judgment 17715/2024), concerning an employee who, despite working in the public sector, recorded a conversation with a lecturer without consent and subsequently published the audio on Facebook.
The Court ruled that such conduct could not be considered within the scope of whistleblowing. The public dissemination of the content aggravated the wrongdoing, making the extra-judicial purpose of the act evident. According to the Court of Cassation, covert recording can only be considered legitimate if strictly aimed at protecting one’s rights in court, not to fuel personal disputes or generate media sensationalism. The same principle was confirmed by the Court of Cassation no. 1880/2025 and the Council of State (judgment of 6 December 2021, no. 8150), which excluded the possibility of classifying subjective complaints or relational problems under the whistleblowing instrument.
Reports must be specific, documented, and refer to unlawful conduct relevant to the community. Furthermore, the misuse of the instrument may justify organisational measures, such as transfer due to environmental incompatibility, with the aim of protecting the working environment and the relational balance between parties.
5. PRACTICAL ASSESSMENT AND CORRECT APPLICATION OF THE INSTRUMENT ↑
In light of the regulatory and jurisprudential framework, it is clear that whistleblowing is a protection tool with strong systemic value, but it requires careful, rigorous, and contextualised application.
The protection offered to the reporting person cannot become an unconditional guarantee. For an individual to benefit from the protections, they must fall within the subjective scope defined by law, and the report must meet the criteria of substantiation, relevance, and good faith. In cases where disputes arise, it will be the judge’s task to assess whether the measure adopted by the employer constitutes retaliation or merely illegitimacy for other reasons. Consider, for example, the judgment of the Court of Bergamo (no. 2/2022) which annulled a dismissal not for the retaliatory nature of the measure, but for the absence of the material fact on which it was based.
The adoption of clear internal procedures, periodic audits, and a culture of ethical reporting are essential elements to ensure the effectiveness of the system. Businesses should complement reporting channels with training tools and transparent policies. Only in this way can whistleblowing become a true prevention tool and not a double-edged sword.
