New EU Trade Bill Threatens Freedom of Expression

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Non-Governmental Organisations (NGOs) and journalists’ associations have warned that the new European Union (EU) Trade Bill being discussed in the European Parliament could endanger freedom of expression and information throughout Europe.

NGOs also warned that the new law will prevent consumers from having enough information about products. The protection of trade secrets could be used by companies to hide information on whether there are substances in their products which are harmful to one’s health or environment-damaging.

The trade bill is aimed at protecting the theft of secret business information like patents, innovative technologies or recipes. The European Commission estimates that one in five small businesses fall victim to illegal misappropriations of sensitive information, hence the bill was created to boost businesses.

On June 16, 2015 the final form of the EU Trade Secrets Directive was put to a vote among members of the European parliament. The draft law will now be passed to a full debate in the European Parliament, before going to the Council of Ministers for review. It is expected to become law in autumn 2015.

According to French MEP Constance Le Grip from the centre-right group of the European People’s Party, the bill is intended to “help businesses obtain legal redress against theft or misuse of their trade secrets”  He also added that “Fighting against economic and industrial espionage and giving companies the means to protect their know-how and professional information against any unlawful acquisition throughout Europe provides better protection for innovation, competitiveness and employment in Europe”

The bill on trade secrets has been in the pipeline since November 2013, when the European Commission published its proposal. The Parliament was mandated to negotiate a final text with its co-legislator, the Council, which represents European governments.

There are businesses such as Nutella and Coke that have trade secrets and only a handful of people who know their recipes. The Commission says, “the exposure of valuable undisclosed know-how and information (trade secrets) to theft, espionage or other misappropriation techniques has and continues to increase” as a result of globalization, outsourcing, longer supply chains, and increased use of ICT. Insiders are mostly responsible for Trade-secret thefts. These insiders include employees or contractors who abscond with sensitive information, which they can download via flash drive, mobile phone or email.

With the new directive, companies would be able to sue anyone who “unlawfully acquires, uses or discloses” secret business information.

Safeguards for freedom of expression and information are considered to be inadequate for journalists or whistleblowers as they would have to prove that a disclosure of a “trade secret” lies in the public interest. In addition, research on informers could become more important than investigating the facts because a journalist who has received such information must ensure the informer has acquired the information legally.

Before Members of the European Parliament voted on the bill, the European Federation of Journalist (EFJ) together with a coalition of civil society organisations urged European Council and the European Parliament to amend the bill by limiting the definition of what constitutes a trade secret and strengthening safeguards and exceptions to ensure that data in the public interest cannot be protected as trade secrets. However, the MEPs failed to make changes to ensure protection for whistleblowers and journalists.