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25/08/2016

Journalists and whistleblowers protected under new Trade Secrets Directive

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Journalists and whistleblowers protected under new Trade Secrets Directive

Constance Le Grip is the European Parliament's rapporteur on Trade Secrets.

[European Parliament]

The final version of the EU’s draft Trade Secrets Directive provides greater legal protection for journalists and whistleblowers who act in the public interest. EurActiv France reports.

The controversial draft Directive on Trade Secrets is on the home straight.

MEPs from the Legal Affairs Committee (JURI) had planned to adopt the final version of the text negotiated between the European institutions on Monday (11 January).

But the compromise reached in mid-December had still not been translated into all the necessary languages, so the vote was postponed until 28 January. “One parliamentary group asked for the vote to be put off until the committee’s next meeting,” said French Republican MEP Constance Le Grip, the rapporteur on the dossier.

>>Read: MEPs rally to protect press freedom from Trade Secrets Directive

The adoption of the directive will be confirmed by the European Parliament as a whole by March or April. “Once adopted by the JURI committee, the Trade Secrets Directive should be put to the plenary in the spring of 2016,” Le Grip said.

Obstacle course

Member states will then have two years to transpose the directive into law, and finally draw a line under a difficult legislative chapter.

This directive, presented by the European Commission in 2013, aimed to harmonise the fight against corporate espionage in Europe and to improve the ability of European companies to protect themselves against this growing problem.

According to the Commission, one in four European companies fell victim to at least one case of information theft in 2013, compared to 18% in 2012.

But journalists were quick to condemn the proposal, which they felt failed to protect their freedom to inform the public. A petition against the directive launched by investigative journalist Élise Lucet collected almost 500,000 signatures.

Lack of balance

Torn between the protection of trade secrets and the right to information and media freedom, the draft directive was judged to have struck the wrong balance.

The initial version of the text provided for several exceptions to the application of the directive, including “for making legitimate use of the right to freedom of expression and information”.

>>Read: Protect journalists from Trade Secrets Directive, French MPs say

But this angered many journalists and media organisations. For them, the notion was too ambiguous and would place the burden of proof with journalists, a situation that could have discouraged reporting on certain sensitive information for fear of legal repercussions.

The terminology used to define a whistleblower also aroused distrust.

Redressing the balance

“But today we have consolidated the status of a whistleblower right from article 1 and introduced guarantees for the freedom of expression, information and the press,” Le Grip said.

For the MEP, the removal of any reference to the “legitimate” use of freedom of information is another victory of the final text.

The sanctions specified in the directive will not be applied if the trade secret was acquired, used or divulged “to reveal misconduct, wrongdoing, fraud or illegal activity”, or if the person that revealed the information did so to protect “a general public interest”.

>>Read: Uproar over protection of trade secrets

These alterations greatly strengthen the legal position of whistleblowers, and have reassured organisations like Reporters Without Borders and the European Federation of Journalists.

“But the directive could still have a significant impact on the freedom of information if the guaranties put in place are not applied,” Reporters Without Borders stated. 

Background

In November 2013, the European Commission proposed a directive giving a common definition of what constitutes a business secret. This directive also provides the framework for victims of business secret theft to claim reparations.

The theft of business secrets is an increasingly widespread problem in the EU. In 2013, one in four European companies was the victim of at least one case of information theft (compared to 18% in 2012).

SMEs and start-ups tend to depend more heavily on confidentiality than large businesses, as do companies that deal in knowledge capital (expertise, R&D and creative products).

Differences in national legislation and the absence of a European definition of business secrets means levels of protection vary considerably from one EU member state to another. 

Further Reading