Parliament must stand up for whistleblowers, not corporate secrecy

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV Media network.

Edward Snowden on Karl-Marx-Strasse. Berlin, August 2014. [Joel Schalit/Flickr]

The adoption of the new Trade Secrets Directive in the European Parliament this week, which seems all but certain, will send a terrible signal to Europeans just one week after the Panama Papers were revealed, writes MEP Julia Reda.

German Pirate Party lawmaker Julia Reda (Greens/EFA) is a member of the Committee on Legal Affairs.

With the abuse of corporate secrecy dominating the headlines and trust in the EU institutions at an all time low, voters will be shocked to learn we’re expanding the right of companies to keep important information away from the public eye and passing legislation that will deter whistleblowers. The European Parliament must demonstrate that it stands up to defend the public interest, or risk alienating voters.

Every time I find myself ringing the alarm to raise attention to a vote like this one, it pains me to see Eurosceptics abuse legitimate concerns as fodder for their wrong-headed anti-EU messages. Doubtlessly they will use the warnings about the Trade Secrets Directive, too, to mock the European project as a whole – even though it is painfully obvious that in an age where the rich and powerful can evade national laws with offshore companies, there is no alternative to working together ever more closely and ever more democratically across borders. The blame for fueling anti-EU sentiment falls squarely on those major parties who act so tone-deaf and continue putting corporate interests above those of the public.

The Panama Papers revelations are only the latest in a series of major scandals involving the disclosure of corporate secrets in recent months. Again and again, we see companies using secrecy to hide their wrongdoings and going after those who dare expose these scandals: The LuxLeaks whistleblower Antoine Deltour faces trial this month to defend against trade secrets disclosure allegations. When faced with questions raised by the Panama Papers, law firm Mossack Fonseca immediately reached for the trade secrets argument to threaten and deter journalists.

The Trade Secrets Directive will broaden the definition of what a trade secret is in many member states. It would be at a company’s discretion to classify whether certain information represents a trade secret, while whistleblowers and investigative journalists wanting to share information are obligated to prove that an exception applies. Information about merely immoral or otherwise questionable behaviour will not be covered by these exceptions if it doesn’t violate any laws or constitute misconduct.

Take a recent example: The premier of Iceland sold his share in an offshore company to his wife for one dollar on the day before a law entered into force that would have required him to disclose his shares. Clearly Icelandic voters have an interest in this information – but the document proving it is a trade secret of the law firm. Forcing a potential whistleblower to evaluate whether the behaviour they’re seeking to expose is strictly illegal or not will also lead to blatant conflicts of interest going unnoticed. Handing over large leaks of raw data like the Panama Papers to a team of journalists in order for them to dig up the most relevant information would become even riskier.

Additionally, the requirement that whistleblowers act “in the public interest” leaves lots of room for interpretation. For example, many argued that the Snowden leaks, which revealed the NSA’s widespread mass surveillance (including tapping into Angela Merkel’s phone), were not in the public interest in the USA, where they occurred – because they put a strain on diplomatic relations.

Finally, the directive does not preclude member states from adopting even stricter criminal law against whistleblowing. The few, narrow exceptions provided by the directive only apply to the civil law penalties against trade secrets disclosure – so even in cases where one of them applies, whistleblowers may still find themselves criminalised under national law.

Last year, the European Parliament awarded Antoine Deltour the European Citizens Prize for saving European tax payers millions of Euros by exposing tax evasion. It makes no sense to turn around now and put measures in place that will deter whistleblowers just like him. The fallout of the Panama Papers has toppled the prime minister of Iceland and sparked major investigations. Can the European Parliament afford to be seen as reacting by doubling down on corporate secrecy?

To win back voters’ trust, we must show that the Parliament is the voice of the people, not of corporate interests. An excellent opportunity lays before us: Let’s reject the Trade Secrets Directive on Thursday, 14 April.

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