New trade secret rules could criminalise journalists and whistleblowers

The European Parliament passed a law on Thursday (14 April) that critics say could criminalise whistleblowers and journalists.

The legislation on trade secrets aims to protect European companies from corporate espionage from rival firm around the world.

“With one company out of every five a victim of theft of trade secrets every year, harmonisation should allow the creation of a safe and trustworthy environment for European companies”, the French centre-right MEP responsible for the bill, Constance le Grip, said after the vote.

But there are concerns that the law, which passed by 503 votes to 131, opens the door for companies to sue anybody who they think violated what they deem to be secrets.

Critics argue that it would have made the revelations of secret tax deals in the LuxLeaks investigation and the off-shore interests revealed by the Panama Papers illegal.

Edouard Perrin, one of the first reporters to disclose LuxLeaks and who has also been working on the Panama Papers, is already facing charges in Luxembourg for revealing sensitive information. Antoine Deltour, a former employee at the PricewaterhouseCoopers firm, the whistleblower who initiated the leaks, is also facing charges.

Both have criticised the new law.

“As a journalist, I strongly oppose the directive. As a reporter that will soon stand trial for precisely being accused of breaching trade secrets law in Luxembourg, I am perfectly aware of the dangers implied by such a legislation," Perrin said in a statement.

“The burden of proof is upon us, not on companies. The sheer threat of a lawsuit will ensure investigations are killed way before any publication,” he said.

German broadcasters, including ARD and ZDF, have warned that the directive could endanger journalistic investigations. Trade unions have also protested.

An online petition had gathered some 155,000 signatures calling to halt the trade secret legislation.

Corporate Europe Observatory (CEO), a Brussels-based pro-transparency NGO, said multinational lobbyists had transformed the EU bill into “something resembling a blanket right to corporate secrecy.”

It said the law “threatens anyone in society who sometimes needs access to companies' internal information without their consent: consumers, employees, journalists, scientists.”

Defenders of the legislation, which now will have to be transposed into national law by member states, said there are safeguards in the text to protect whistleblowers and journalists.

“I've also been fighting to ensure that the safeguards laid down in this text to protect the work of journalists and whistleblowers are as real and as unambiguous as can be”, Le Grip said.

The text of the legislation includes safeguards, such as “exercising the right to freedom of expression and information as set out in the Charter of Fundamental Rights of the EU.”

It also permits disclosures if they revealed wrongdoing or illegal activities.

But critics said it will be up to a judge to decide whether individual revelations fall into those categories, while companies will get to decide what are trade secrets.

"They [whistleblowers and journalists] will need to demonstrate to the judge that they acted with 'the purpose of protecting the public general interest', the burden of the proof is on them, and while large companies can afford long and expensive legal procedures, individuals usually cannot," CEO pointed out in their statement.