EUobserver opinion: EU trade secret directive is a threat to media freedom

A new EU directive which is being discussed at the European parliament is threatening investigative journalism throughout Europe.

The main objective of the trade secret directive is the protection against disclosure and theft of secret business information like patents, innovative technologies or recipes.

But NGOs and journalists’ associations warn that the legislation could endanger freedom of expression and information.

The main reason for concern is an unreasonably broad definition of "trade secrets". Companies could sue anyone who "unlawfully acquires, uses or discloses" a secret business informations.

Trade unions say that even informations about future mergers or redundancies could fall under the scope of the directive.

Safeguards for freedom of expression and information are considered to be inadequate for journalists or whistleblowers as they would have to proof that a disclosure of a "trade secret" lies in the public interest.

In addition, journalists would have to check first if an informer has acquired a certain information legally. Research on informers could become more important than investigating the facts.

Both restrictions would make revelations about some wrong behaviour by a company more difficult as they are now.

Judicial authorities of Luxembourg recently charged whistleblower Antoine Deltour, a former clerk at Price Waterhouse Coopers, who unveiled the so called LuxLeaks scandal.

Multinational corporations like Amazon, Fiat, Disney paid only a low tax-rate in Luxembourg for their profits acquired in the whole EU.

A French journalist, Edouard Perrin, who reported about these unfair tax differences was also charged by the Luxembourger justice.

With the new directive on trade secrets, investigative journalism could lead to a wave of accusations by companies against media-organisations.

The OSCE’s representative for media-freedom, Dunja Mijatovic, told the Austrian news magazine Profil that the EU directive could have a "serious impact on media freedom".

"Some of the provisions do not sufficiently prevent the introduction of excessive restrictions to freedom of expression and freedom of the media by EU member states", Mijatovic warned.

"More particularly the text does not define the legitimate exercise of the right to freedom of expression and information and does not provide a clear notion of public interest in order to properly protect investigative journalism."

The Association of European Journalists (AEJ) appealed to EU institutions leaders to include more and more specific safeguards in the new piece of legislation to prevent breaches at the freedom of information, one of the basic values of the European Union.

Under the proposed directive, whistleblowers can use undisclosed information to reveal misconduct or wrongdoing, but only if "the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest".

But to determine whether disclosure was necessary can often be assessed only afterwards. In addition, it remains unclear whether some types of information (like plans to lay off a large number of employees) can be defined as "misconduct" or "wrongdoing".

This creates legal uncertainty for journalists, particularly those who specialise in economic investigations, said the European Federation of Journalists (EFJ), which also asked for changes in the directive.

The French centre-right MEP Constance Le Grip i, who is rapporteur for the directive, said the directive leaves enough safeguards for journalists.

Le Grip said that the directive "doesn’t go against civil liberties" and strikes a balance "between the need to protect secrets and the need for knowledge and information to circulate."

But it is also true that a massive lobbying by companies took place in the relevant EU institutions. Some enterprises whose products were copied illegaly urged EU politicians to speed up the new directive.

In contrast, NGOs warned that the new regulation will limit information to consumers. Trade secret protection may, for example, be invoked by companies to hide information on chemicals in plastics, clothing, cleaning products and other items that can cause severe damage to the environment and human health.

The directive will be put to the vote in the European Parliament's committee on legal affairs on Tuesday (16 June). Then it will come back to the scrutiny of EU ministers. Maybe the last chance to defend attacks on the freedom of journalism in Europe.

Otmar Lahodynsky is a journalist at Austrian weekly Profil and president of the Association of European Journalists