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15.04.2016

A new EU Trade Secrets Directive – and a danger to media freedom?

By Beata Walczakiewicz
The European Parliament adopted a new directive on trade secrets. But journalists’ organisations criticize the move as they fear that investigative journalism will be restricted.

The impact assessment of European Union showed that in many Members States the rules aimed at safeguarding trade secrets are not appropriate in addition to needs of the Internal Market. The pace of development is not as rapid as expected. Companies in the EU do not share valuable information with each other because of the ineffective legal protection of trade secrets. Therefore, new innovations cannot exist as a result of the collaborative research between companies.

A new EU directive is the result of a long discussion about standardization of the national law in order to improve the protection of trade secrets. The initiative shall ensure all trade-partners that the information exchange will be controlled and protected. A draft was proposed by the Commission in 2013 and on 15 December 2015, a preliminary agreement on the contents of the directive was made.

Although new regulations to protect trade secrets seem to be necessary, they do not only influence the sphere of the trade market. The directive at hand may also be an obstacle to gain and spread information - especially for journalists and whistleblowers.
The European Union states that there is no need to be concerned about the freedom of expression, as the document only deal with unlawful disclosure of confidential information. It is also underlined that public interest are more important that private interests and the new directive will not breach the law of expression and right to information (read here).  

EFJ concerned about national implementation of directive

But journalists’ organizations like ECPMF’s member organisation European Federation of journalists, EFJ, are concerned that the directive does not provide any specific exceptions for journalists for gathering information on trade secrets and it is thus seen as a potential threat to press freedom. According to article 3 (3) of the directive, it is not forbidden to disclose information for “legitimate use” – but concrete specifications of such cases remain unclear and thus strongly depend upon the individual implementation of national governments.

The EFJ raised its concerns in an open letter – with consequences for the final text of the directive that was agreed upon by the European Parliament. Under the influence of the letter, the expression of “legitimate” use was removed, also the system of sanctions and the guarantees for freedom of expression have been specified. A punishment will not be applied, if somebody revealed the information for “a general public interest”, said French MEP and Rapporteur on Trade Secrets, Constance Le Grip (read more).
Nevertheless, supporters of whistleblowing and journalists’ association are still strongly concerned about the final version of the directive:

Despite valuable improvements of the original draft, the newly adopted Directive still raises doubts as to whether journalists and in particular their sources – whistleblowers – are appropriately protected. Exceptions foreseen under Article 5 for the exercise of freedom of expression and information are not clear enough, which means that safeguards for freedom of the media will largely depend on how national governments implement the Directive. In addition, whistleblowers are potentially left exposed insofar as they will be held to prove that the disclosure of information is made ‘for the purpose of protecting the general public interest’.

This could lead to significant legal uncertainty and chilling effects on journalists as they would be required to prove that the whistleblower’s intention was in line with the requirements of the Directive before even being able to use disclosed public interest information.”

(more)

If journalists are unsure about their rights, it is more likely that they restrain from investigative journalism that involves the publishing of information that might be affected by the new trade secrets directive. The directive foresees punishments not only for the disclosure of trade secrets, but also for the acquisition of such information. This could influence journalists into a negative direction which stops them from publishing secret information. However, in democratic societies journalism has not only the function to inform the people, but also to serve as a “public watchdog” which publishes information – sometimes secrets – about public authorities and others. This function and right to publish information must remain untouched and may not be belittled for the advantage of trade secrets.





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