The new Trade Secrets Directive is meant to protect businesses from industrial espionage. But it will muzzle whistleblowers on public health and environment issues becuase it puts journalists, scientists and public authorities at risk of being crushed in court by corporations, writes James Thornton.
James Thornton is chief executive of ClientEarth.
Whistleblowers are often at the heart of the world’s biggest stories. From Edward Snowden to Julian Assange, they have sparked repeated storms of controversy. The EU considers whistleblowers so vulnerable that it recently amended its own staff regulations to give them greater legal protection. Yet, when it comes to industry, the Commission is happy to propose laws that put whistleblowers in real danger of financial ruin.
On 16 June, policymakers in the European Parliament’s legal affairs committee will vote on the draft Trade Secrets Directive. It aims to protect companies against industrial espionage and unfair competition. Unfortunately, the draft law poses a severe threat to freedom of information.
The vote will fix the final form of a law which was moulded by corporations with almost no input from organisations working to protect public health. Resource-stretched EU officials gratefully accepted input from companies with a strong interest in shaping the EU’s transparency laws – among them, Michelin and energy giants Alstom and DuPont– as well as lobbyists BusinessEurope and the Trade Secrets and Innovation Coalition. This will have an insidious effect on public faith in EU institutions
See you in court?
The Trade Secrets Directive allows companies to withhold information on the health and environmental impact of their operations from the public. It does this by giving them the power to sue anyone disclosing data without their consent. This means public authorities, journalists and scientists risk being financially crushed in court by multi-million pound corporations. This is not only dangerous to society—it also flies in the face of that recently amended whistleblower policy.
It is not just a few brave individuals who will feel the brunt of the law. In passing it, the EU will make its own job more difficult. ClientEarth often challenges public authorities over their secrecy on issues like emissions, clinical trials and food safety. We know public authorities are already under pressure from industry not to disclose business information, even when they are legally obliged to do so. In its current form, the directive gives companies even more power over public authorities. This damages democracy, because voters will have less of a say than the head of a company.
Think back to the Tamiflu scandal. In 2009, European governments stockpiled the drug to treat swine flu amid global panic about the disease. At the time, we didn’t realise Tamiflu was ineffective at treating serious influenza complications, but Roche did. The drug’s shortcomings only came to light after health network Cochrane fought for access to Roche’s clinical trial data, and won. The Trade Secrets Directive would have jeopardised that outcome, and the data might still be under wraps.
Which law will be enforced?
The failings of the directive don’t stop there. It looks almost certain that the Trade Secrets Directive will put the EU at odds with its own commitment on access to information. The EU is a signatory to the Aarhus Convention, which guarantees people access to business information affecting health and the environment. By law, the Aarhus Convention should prevail over the Trade Secrets Directive. However, with no reference to the Aarhus Convention in the directive, public authorities can play it safe by simply refusing to disclose business information. In contrast to the potential penalties in the Trade Secrets Directive, public authorities do not risk paying out damages when they withhold information in breach of access to information laws.
The vote on 16 June is crucial for the Trade Secrets Directive. The draft law shaped by this vote will likely be very close to the final law passed by the EU. But there is still time to fix the directive and ensure it protects those releasing information in the public interest.
If policymakers implement these changes, the EU will have taken an important step to regain public trust, whilst protecting people and the planet. You can help them do this and stop the Trade Secrets Directive blocking access to information. Sign the petition. Show the EU you care about transparency, health and the environment.