EU Trade Secrets Directive: A sad day for the freedom of expression

On 14 April, the European Parliament adopted the deeply flawed EU Trade Secrets Directive. This is a sad state of affairs, that does not reflect well on the quality of the EU legislature, both on process and on substance.

On process, it started with Commission-sponsored research that was deeply flawed and misleading. At no point has the Commission presented compelling evidence of the existence of a clear need for EU-wide trade secrets rules, let alone the far-reaching one we are getting now. Furthermore, how credible is a plenary vote in which the translations of the proposed text, finally adopted by the European Parliament, have at times opposite meanings in the German version compared with the English version?

As it stands now, this Trade Secrets Directive does not really harmonise EU trade secrets protections. Only three Member States have legislation in civil law that protects trade secrets to some extent. It is more a case of transatlantic regulatory convergence, since a very similar proposal is going through to Congress.

The fact that this seems to be a prelude to the transatlantic regulatory convergence that TTIP-proponents are talking about is not the biggest problem. It completely departs from the problem it claims to address: competitive advantages gained through unfair means. Instead it defines trade secrets in such a broad way, namely information of commercial interest, that it is bound to have a chilling effect on corporate transparency, journalism, environmental activism, labour mobility and IT-security research.

The recent Panama papers are a good example: each of the actors named in them could, under the rules promulgated in this Directive, claim a violation of a trade secret. The safeguards put in place through amendments might be upheld in court, but the prospect of such a legal challenge would in itself constitute a deterrent for the newspapers involved.

It will in all likelihood take a long time after the implementation to have the court system redress the most egregious censoring effects of this Directive. In the meantime a lot of free speech will be supressed, either directly or indirectly through its chilling effects.

EDRi: EU trade secrets Directive: threat to free speech, health, environment and worker mobility (23.03.2015)
https://edri.org/trade-secrets-directive-statement/

(Contribution by Walter van Holst, EDRi-member Vrijschrift, The Netherlands)