Directive on Trade Secrets – amend it or reject it!

Proposed by the European Commission in 2013, the draft directive on Trade Secrets is currently the subject of “trilogue” discussions between the Commission, the Council and the Parliament, and is due to be adopted soon. The directive’s aim is to harmonize protection against industrial espionage and unfair competition throughout the EU. Its impact could be devastating for investigative journalism or could even eliminate it altogether. Journalists could be prosecuted for using or being in possession of information deemed to be a “trade secret” even when their intention was to satisfy the public’s right to be informed. The organizations signing this appeal urge the European institutions to address the following flaws in the proposed directive, with the aim of making an exception for journalists who use or who are in possession of a trade secret in connection with their journalistic work. - Do not settle for vague guarantees The Commission, Parliament and Council are currently discussing three different drafts of the proposed directive. With the aim of protecting freedom of expression and information, the Parliament has introduced some general safeguards that are missing from the other drafts. The Parliament’s version says: “Member States shall respect freedom of the press and the media (…) in order to ensure that the Directive does not restrict journalistic works, in particular with regard to investigation, protection of sources, and the right of the public to be informed.” It also says that the directive “shall not affect the freedom and pluralism of the media as enshrined in the EU Charter of Fundamental Rights.” These additions, on which there is not even a consensus among the three EU institutions, are insufficient. None of the drafts includes specific provisions capable of ensuring that journalists are fully able to use their freedom of expression and information and safeguarding the public’s right to be informed. Only an explicit exception for journalists in connection with their work is capable of guaranteeing the public’s right to be informed. - Include an exception for the exercise of journalism In all three drafts, the acquisition, use or disclosure of a trade secret is prohibited unless for the purpose of “a legitimate use of the right to freedom of expression and information.” The concept of “legitimate use” of a fundamental right is disturbing. In principle, the use of a freedom is legitimate except in case of strictly defined exceptions. This wording creates a legal uncertainty for journalists. In the event of non-compliance, the proposed directive envisages “damages appropriate to the actual prejudice suffered”, which could potentially be astronomic. As result, this uncertainty would have a chilling effect on journalists. It would deter them from using these freedoms and would lead to self-censorship. We therefore request that the directive should make an exception for “the use by journalists of the right to freedom of expression and information in connection with their journalistic activity.” - Allow acquisition by journalists for information purposes The proposed directive would not only prohibit the use and disclosure of a “trade secret” but also its mere “acquisition.” Even unauthorized access and copying of a trade secret would be unlawful, regardless of how it is used or whether it is disclosed. This constitutes a grave threat to the work of journalists, which consists precisely in accessing information in the interest of the public’s right to know, without necessarily asking for the trade secret holder’s consent. To safeguard the ability of journalists to research and investigate, the mere acquisition of a trade secret should not be prohibited as long as it is acquired as part of a journalistic activity and in the absence of proof to the contrary.