MEPs rally to protect press freedom from Trade Secrets Directive

Opponents of the Trade Secrets Directive fear companies may use it to prosecute whistle-blowers. [Dennis Skley/Flickr]

Members of the European Parliament’s Legal Affairs Committee have adopted measures to ensure that the Trade Secrets bill does not weaken the right to freedom of information. EURACTIV France reports.

European lawmakers are attempting to combine increased protection for trade secrets with existing freedom of information laws.

The proposed “Trade Secrets Directive”, which has come in for strong criticism from civil society organisations and journalists, was amended yesterday (16 June) by the European Parliament’s Legal Affairs (JURI) Committee.

A report on the bill by French MEP Constance Le Grip (European People’s Party), was adopted by 19 votes in favour to 2 against and 3 abstentions. The report has mollified some who saw the bill as an attack on the freedom of expression.

>> Read: Uproar over protection of trade secrets

Press freedom

Opponents of the bill claim that it undermines freedom of information laws by allowing businesses to prosecute journalists or whistle-blowers who reveal confidential information. French MPs voiced their opposition to the proposed directive in a vote on Tuesday (9 June).

“We have made considerable alterations and improvements to the initial text, because it is absolutely crucial to protect basic freedoms and guarantee the full right of freedom of information,” Le Grip said.

The alterations are designed to provide increased legal protection for journalists, whistle-blowers and employees that reveal illegal or questionable practices taking place in their company.

The addition of an explicit mention of the EU Charter of Fundamental Rights is among the changes adopted by the JURI committee.

On press freedom, Le Grip tried to give assurances, saying:

“We have expressly stated in article 1 that the directive must in now way affect the freedom of the press.”

“There are sufficient safeguards that no lawyer in the world would advise their client to sue a journalist based on the Trade Secrets Directive. We tend to think, for example, that the proposed directive would have protected the French journalist Édouard Perrin, who was prosecuted in Luxembourg for breaking the LuxLeaks scandal.”

Burden of proof

But this optimism is not universal.

French Green MEP Pascal Durand expressed his regret that “the few improvements we have made have not changed the essence of this bill: to make secrecy the norm and transparency the exception”.

He also pointed out that the “burden of proof” still resides with the journalists and whistle-blowers.

This concept is hard to reconcile with the journalistic practice of protecting sources, which is systematically supported by the European Court of Human Rights.

The text will now be discussed in a trilogue between the three European institutions ahead of the first reading in Parliament.

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

The directive was proposed by the European Commission in 2013, and aims to protect European companies from the theft of trade secrets, including technologies and manufacturing techniques. This phenomenon is becoming increasingly common among innovative SMEs, according to the European Commission.

300,000 signatures

But the EU’s objective of protecting the interests of European companies was quickly called into question, as critics saw the Trade Secrets Directive as a considerable threat to the work of investigative journalists and other whistle-blowers.

Pressure on MEPs was turned up a notch, with the launch of a petition against the directive earlier this month. So far, the petition, organised by the French journalist Elise Lucet, has collected well over 300,000 signatures.

Greens/EFA MEP Julia Reda, a member of the Legal Affairs committee, commented, “This proposal does not provide any added value for EU companies or innovation in the EU. Supporters of the proposal relied on a flawed argument by which insufficient protection of trade secrets would hamper innovation in the EU. But if EU member states want to promote innovation, they should increase their research and development spending. The European Commission states that its proposals were necessary because of the need to harmonise rules across the EU. However, this will not be possible without undermining fundamental rights. Fundamentally, the directive’s very vague definition of trade secrets means that companies have leeway to abuse the legislative provisions."

Constance Le Grip, a French EPP Group MEP and Rapporteur on the protection of trade secrets, said, "In the face of the spiralling numbers of the theft of trade secrets, Europe cannot remain silent or inert. The guarantees provided by the European Parliament for journalists’ work and to protect their sources are real and unambiguous. We clearly stipulate that journalists will be exempt from the application of the measures in the Directive as part of their professional activity, even if they have been led to detain and illegally disclose a trade secret during an investigation. Similarly, sources will have the opportunity to benefit from this exemption even if they reveal a malfunction or an illegal activity for example, in order to defend the public interest."

Sergio Cofferati, the S&D shadow rapporteur for the report, said, "People who expose corruption or misconduct should be celebrated not prosecuted. They play an important role in ensuring that powerful companies and governments are held to account. This is essential for a well-functioning economy and democracy. The text we voted today has been substantially improved, in particular the exclusion of experiences and skills of workers from the definition of trade secrets, the protection of rights of freedom of expression and information, and an exemption for any 'whistle-blower' acting in the public interest. It is fundamental now to keep these results during the negotiations with the Council."

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

The theft of trade 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 trade secrets, means levels of protection vary considerably from one EU member state to another.

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