Caution needed in transposing whistleblowing and trade secrets directives

The trials of Antoine Deltour, who kicked off the LuxLeaks affair, and Chelsea Manning, who leaked a vast wad of data on the US Army to Wikileaks, have garnered public support for whistleblowers around the world. [Tony Webster/ Flickr]

The Commission presented on Monday (23 April) a draft directive on the protection of whistleblowers. However, this new draft counterbalances the directive on trade secrets adopted in 2016, which France is currently transposing. reports.

On Monday, the European Commission unveiled its draft law on the protection of whistleblowers, while in France MPs are currently debating a draft law on trade secrets. The law itself is the result of a Commission directive adopted in 2016, which France has to transpose by June 2018.

Without being contradictory, the two texts seem to defend different interests. The directive on trade secrets was heavily criticised in 2016 because of its rather broad definition of trade secrets. According to several associations, the text could undermine investigative journalism and whistleblowers.

Though the directive contains two exceptions, for the media and for the individuals acting in the public interest, the protection provided for the two was considered insufficient.

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The draft text presented by the Commission offsets this lack of safeguards. Under pressure from civil society and MEPs, the Commission presented an ambitious text containing a broad definition of the term whistleblower and a broad scope of application for the protection (covering the financial services industry, public procurement processes and consumer protection).

However, Green MEP Pascal Durand, who has a keen interest in the matter, points to a risk of “competition” between the two texts. “Large companies will refer to the directive on trade secrets.  While journalists, whistle-blowers, and civil society will refer to the Directive on whistle-blowers, once it has been adopted”.

Meanwhile, Virginie Rozière, French MEP and co-chair of the Radical Party of the Left, said “the two texts are complementary”.

“The Directive on trade secrets sets up safeguards for whistleblowers and provides for the primacy of European general interest over trade secrets. The challenge will be to see whether an explicit reference to such primacy remains in the Directive on whistleblowers after negotiations with the European Parliament and the Council.”

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Practical implementation of both texts will depend greatly on the national laws transposing them. In France, the Senate recently made the provisions of the draft law on trade secrets approved by the National Assembly even stricter.

In particular, the French Senate removed an amendment introduced by the National Assembly aimed at introducing a civil fine to punish delaying tactics or abusive practices by large companies against whistleblowers and journalists.

“The transposition sets the tone for each member state,” said Rozière while adding that in Denmark the law transposed from the directive on trade secrets was supported by Danish journalist organisations. According to her, the French transposition weakens the position of whistleblowers.

A three-tiered system with a safeguard clause

While MEPs welcomed the Commission’s draft directive but some called for vigilance, particularly when it comes to reporting procedures.

The Commission put forward a three-tier system whereby the whistleblower should first contact internal structures responsible for collecting alerts. Only after a three month period with no response from those contacted can it turn to a competent national authority which all member states are obligated to set up. The press and civil society come as a last resort if the second step also fails.

“To include the press only as a last resort in the event of imminent danger or irreversible damage is to limit press freedom and the public’s right to access information of general interest,” Julie Majerczak, a representative of Reporters Without Borders, told the European institutions.

However, a safeguard clause in the text states that protection will be granted to whistleblowers who have made the information publicly available if “he/she could not reasonably be expected to use internal and/or external reporting channels due to imminent or manifest danger for the public interest, or to the particular circumstances of the case, or where there is a risk of irreversible damage”.

According to Rozière, the problem is that “this exception would only apply in emergency situations”.

“Once again, the whistleblower will end up in court and will have to prove that such a situation existed and justify circumventing the internal and external channels. If the level system is maintained during the negotiations on the directive, this exception will have to be enlarged and safeguarded”.

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