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Trade secrets … the return. Attention danger !

Autosave-File vom d-lab2/3 of AgfaPhoto GmbH
Tomorrow, will it be necessary to have a well-equipped helmet to have fun revealing unmentionable business secrets? © NGV / B2

(BRUSSELS2) The text under debate at European level intended to protect business secrecy involves certain uncertainties on the freedom of the press, according to our analysis

The question of the protection of business secrecy was the subject of debate in France during the examination of the Macron law which contained certain provisions repressing it. Rather stormy debates - which had raised an outcry, notably from representatives of the press in particular (read on the site of the SNJs) — but ultimately brief. The Government fairly quickly abandoned this idea... Without really fighting, it is true. And for good reason...

A draft directive

The subject returns today, by the band, at the European level. A directive intended to protect business secrecy (1) was presented in November 2013 by the European Commission. A text which is currently the subject of debate in the European Parliament. A draft report was written by the rapporteur, the Frenchwoman Constance le Grip (UMP). It was presented on Monday and the deadline for amendments is ... tomorrow (26 March). It should be adopted in the "Juri" (legal) committee in May and in the plenary of Parliament in September 2015. And the Ministers of Industry (Competitiveness) are due to consider the subject at their meeting on 26th May next.

A laudable intention

The objective of this text is commendable: to protect companies against the theft of certain secrets. The plot of a novel, the first sketches of a new model, a business strategy, a price list, ... all of this constitutes a certain amount of work for its designer or the company that develops it and damage is caused. they came to be revealed to the competition... or to the public. Moreover, it is not always very easy to protect by patent or copyright. Theft is therefore tempting and hardly punishable. And this is not pure fiction. Attempts to seize these secrets are numerous.

One in five businesses victim of attempted theft

According to the survey carried out by the European Commission among a "representative" sample of companies (537 replies), one company in five has suffered in the past ten years at least one attempt at unlawful appropriation. This risk is, moreover, increasing “, according to about 40% of respondents. Certainly national regulations exist. But "they offer an unequal level of protection considers the European executive in its impact study, which considers it necessary to harmonize European legislation. This legitimate interest of companies, however, comes up against another legitimate interest: that of public opinion to be informed of some practices within companies, not very commendable (manufacture of useless or dangerous drugs, discriminatory pricing, tax optimization, etc.). ..).

Very "business friendly" MEPs

MEPs seem aware of the need to find a balance between the protection of business secrets and that of the press. But they didn't really walk the talk... In the draft report (2) written by Constance le Grip, a recital was added to specify that this text " should not constitute an obstacle to freedom of information, freedom of expression and media pluralism ". But this is only a recital, which has more political than legal value (3). The idea is largely more to promote companies and the (legitimate) conversation of their alcove secrets. In L'hearing, organized in January, the speakers almost all came either from the business world or from close circles (lawyer, professor specializing in intellectual protection, etc.).

A question of balance between two rights: that of protecting one's way of doing things, that of informing the citizen

The European executive has taken care to specify in the reasons for its decision that its proposal is not directed against freedom of expression. And at the rapporteur, the French deputy of the UMP, Constance Le Grip, we assure that everything has been done to protect the freedom to inform. But for a "fundamental right", this freedom to inform seems to be only partially protected. To be sure, you have to read the entire text. This is structured in several parts: at the beginning is defined the trade secret, then the illicit acts are listed (article 3) as well as the lawful acts (article 4), the whole concluded by general provisions.

Freedom of the press, poorly protected

The freedom to inform does not appear in the list of acts "considered lawful", for example tests for consumers, the right to information for workers in the company (for a social plan, for example... ). It appears in a secondary paragraph (in Article 4-2) which provides that " States shall ensure that there is no right to the application of the measures, procedures and remedies provided for in this Directive when the alleged acquisition, use or disclosure of the trade secret” operates within the framework of legitimate use of the right to freedom of expression and information ". Otherwise, says the freedom to inform is not a right but just a just cause - on condition of proving it - not to be prosecuted. It's a slight problem! Especially since the sources of press information are not really protected either.

Weakened sources of information...

Whistleblowers" are only protected by a similar measure if there is " disclosure of wrongdoing, wrongdoing or illegal activity by the claimant, provided that the alleged obtaining, use or disclosure of the trade secret was necessary for such disclosure and that the defendant acted in the public interest”.  Clearly, for the revelation of a completely legal mechanism, such as a tax optimization scheme, legal but not very honest in terms of fairness, journalists and, even more, its sources could be prosecuted... (4)

(Nicolas Gros-Verheyde)
vice president of theAJE - France

(1) "Directive on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure". To download here

(2) Draft report to download here

(3) Eminent jurists will probably just be able to justify that a recital has a certain legal value... Maybe (and again ;-). But I have rarely seen a judge of a court of first instance seek in a recital of a directive a justification

(4) Various NGOs have moreover signed a common text intended to raise awareness of this problem. Text taken from Mediapart

Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).

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