Business secret: compromise amendments, dangerous for the press

(B2) A proposal for compromise amendments, made by the EPP (European People's Party) group, will be discussed this Wednesday, June 10, in the afternoon, in Strasbourg by the rapporteurs of the various political groups on the directive " trade secrets". This proposal revolves around several topics. It is not at all satisfactory, and even worse in some respects than the initial proposal.

Article 1 Subject matter and scope

This Directive lays down rules on the protection against the unlawful acquisition, use and disclosure of undisclosed know-how and commercial business information (trade secrets).

This Directive shall not affect:...(...)

A new article 1 has been drafted which lists all the topics which are not "concerned" by this directive (excluding them from the scope). Freedom of the press does not figure in this article. This is already symptomatic in itself of the objective of this directive.

Section 4 Exceptions

Member States shall ensure that there shall be no entitlement to the application for the measures, procedures and remedies provided for in this Directive when the alleged illegal acquisition, use or disclosure of the trade secret was carried out in any of the following cases:

(a) for making legitimate use in accordance with the Charter of Fundamental Rights of the European Union of the right to freedom of expression and information, including freedom of media;

(b) for the purpose of revealing a misconduct, wrongdoing, fraud or illegal activity, provided that the alleged illegal acquisitions, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest;

(c) the trade secret was disclosed by workers to their representatives as part of the legitimate exercise of their representative functions in accordance with Union and national law, provided that such disclosure was necessary for that exercise;

The twist of this amendment reveals that one of the objectives underlying the text is not so much the media as such, but to bring to heel, to silence the sources — directors, employees, employees, subcontractors, etc. of a company — who might be tempted to reveal unmentionable behavior to the press... In itself, it is this aspect which is the most damaging to freedom of expression.

Unsatisfactory amendments

On first analysis, this set is not at all satisfactory. The use of freedom of the press is not automatic. It remains included in the scope of the directive of which it is only an exception. In addition, it is conditioned to "legitimate" use.

The most worrying element is the lack of source protection. The whistleblower will only be protected if the “unlawful” acquisition was necessary for such disclosure and acted in the public interest”. That's a lot of conditions.

The combination of all these elements makes the freedom of the press not automatic but subordinate to the realization of the freedom of companies to preserve their “secrets”. It could in fact lead to a reversal of the burden of proof. The journalist and the media having to prove that he did not act badly.

On the relative value of the recitals

Several "recitals" are also modified. These recitals are only of relative importance. They have no legal value, no obligation to transpose them in the Member States, and only have value when the directive will be examined by the European Court of Justice, in other words several years from now. Moreover, they are often redundant with the already existing legal corpus (European Convention on Human Rights, general principles of law, Charter of Fundamental Rights, etc.) which in any case are applicable to this text without mention them. Both the European Commission and the European Parliament often put forward certain very detailed recitals to justify certain absences or vagueness in the text. For us, if the European authorities want to put their words into action, they must transform certain recitals in the text of the directive itself.

In the European Parliament

The AJE sought to know what really motivates this directive. No logical, understandable element has really been put forward. What seems to be proven is that this directive, which is supposed to protect SMEs, aims more to protect "large multinational groups". The pharmaceutical and cosmetics sectors, as well as certain high-tech or financial sectors, seem particularly concerned. We are also surprised by the desire for speed, desired to complete this dossier, both on the part of the European institutions and of the Member States. Which for such a sensitive subject is more than disturbing. The element most likely to explain this dual approach (industrial large groups + speed) is the desire to bring European and American legislation closer together. New (federal) legislation was thus presented on the other side of the Atlantic in September 2014 (read on the blog trade secret)

Reject the directive or not

The temptation is very great within the European Parliament to accept compromises. Without a strong mobilization of the media and citizens, the result could be very negative. Be careful, however, not to "throw the baby out with the bathwater", and to have an ultra-radical position. A well-drafted directive could be an interesting step for the protection of sources and the protection of investigative journalism in many countries where these two aspects are poorly protected. Conversely, a poorly drafted directive could be perceived as encouraging breaches in the freedom of the press and of expression. The whole interest of journalists is to tip the balance in the right direction.

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