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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 different political groups on the directive. trade secrets. This proposal focuses on several subjects. It is not satisfactory at all, and even worse in certain aspects, 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 themes which are not “concerned” by this directive (excluding them from the scope of application). Freedom of the press does not figure in this article. Which 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 turn of this amendment reveals that one of the objectives underlying the text is not so much the media per se as to bring the sources into line, to silence the sources - managers, employees, employees, subcontractors, etc. of a company — who could be tempted to reveal unspeakable behavior to the press... In itself, it is this aspect which is the most damaging to freedom of expression.

Unsatisfactory amendments

At first glance, this set is not at all satisfactory. The use of press freedom is not automatic. It remains included in the scope of the directive of which it constitutes only an exception. In addition, it is conditioned for “legitimate” use.

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

The combination of all these elements means that freedom of the press is 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 must prove that he did not act badly.

On the relative value of the recitals

Several “recitals” are also modified. These considerations are only of relative importance. They have no legal value, no obligation to transpose in the Member States, and only have value on the day the directive is examined by the European Court of Justice, in other words in several years. 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 mentioning them. . The European Commission, like the European Parliament, often highlights certain very detailed considerations 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 considerations in the text of the directive itself.

In the European Parliament

The AJE sought to find out what really motivates this directive. No logical, understandable element has really been put forward. What seems proven is that this directive intended to protect SMEs aims more to protect “large multinational groups”. The pharmaceutical and cosmetics sectors as well as certain HighTech or financial sectors seem particularly concerned. We are also surprised by the desire for speed, desired to complete this file, both on the part of the European institutions and the Member States. Which for such a sensitive subject is more than disturbing. The element best able to explain this dual approach (large industrial groups + speed) is the desire to bring European and American legislation closer together. New (federal) legislation was 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 strong mobilization of the media and citizens, the result could be very negative. Be careful, however, not to “throw out the baby with the bathwater”, and 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 seen as an encouragement to undermine freedom of the press and expression. The whole point of journalists is to tip the scales in the right direction.

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

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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