On 13 May 2016, EDRi and 51 other civil society organisations sent an open letter (pdf) to the Heads of State and Government of the European Union to amend the draft Trade Secrets Directive, to protect our rights and freedoms, including those of journalists and whistleblowers.

This call for change is of utmost importance. For instance, the prosecutor in the Luxleaks case used the vote of the European Parliament on the Trade Secrets Directive as an excuse to justify proposing prison sentences and high fines for Luxleaks whistleblowers. Who is going to uncover cases of corruption, human rights violations, etc? This is a threat against EU’s values, democracy and our rights and freedoms.

The Council has the last say before it enters into force. Member States gathered in the Council of the European Union were expected to vote on 17 May. Allegedly due to issues of translation, the vote has been postponed to 25 May. You can read the content of the letter and the names of the signatories below:

The Trade Secrets Protection Directive Is Still Dangerous For Freedoms and Rights

An Open Letter to Heads of State and Government of the European Union

: final examination of the Trade Secrets Protection Directive [on 25] May 2016

Last 14th of April 2016, the European Parliament voted in favour of the draft directive on trade secrets protection. This directive still needs to be approved next May [25] by the Council of the EU, which represents you. We urge you to further amend the text before approving it.

Drafted by the European Commission at the request, and with the considerable help, of a few multinational companies, this text has caused much concern and opposition among European citizens, trade unions and NGOs. As a matter of fact, it is meant to protect companies against the theft of trade secrets but has a potential scope which is too large and threatens to enable lawsuits against people who are not criminals: journalists, trade unionists or whistle-blowers publishing internal information from a company, or employees using information acquired in a previous job.

The exceptions and protections supposed to protect liberties which were introduced or reinforced following our campaign are important and must be defended, but remain insufficient for the whole text to be balanced and fair. Moreover, their transposition will change depending on Member States, and above all the text is structured in such a way that it it will be down to individual judges to balance the protection of fundamental freedoms and the protection of economic interests. The very principle of having to balance such different things is not acceptable. The burden of proof is reversed: companies will only need to prove that they did not authorise the acquisition, use or publication of the trade secret at stake, while the prosecuted persons will need to demonstrate that they acted in a way that is covered by one of the exceptions. The sheer perspective of litigation will intimidate potential investigations and whistleblowers, not to mention the daily impact on employees’ mobility and the possibility for the public to access public interest information on the toxicity of products on the EU market (such as medicines).

The trial of Antoine Deltour, Raphaël Halet (the whistleblowers) and Edouard Perrin (the journalist) in the Luxleaks scandal is the perfect example of the threats posed by this directive. The prosecutor justified requesting heavy fines for all and 18 months jail time for the whistleblowers by referring to “the EU Trade Secrets directive widely approved in the European Parliament two weeks ago”. Contrary to the denials of the text’s supporters, this is already a real life example that the trade secrets protection argument can be used to prosecute journalists and whistleblowers.

We urge you to not approve this text as it is. We think it is indispensable that the definition of trade secrets is narrowed and that the illegality of the acquisition, use or publication of trade secrets is restricted to cases of commercial, financial or competitive gain. Exceptions and protections must also be further reinforced, and the prescription time in particular must be shortened to the original Commission proposal (2 years). In parallel, we urge you to push the European Commission to introduce specific EU legislation on the protection of whistleblowers.

Respectfully,

ActionAid International

Anticor

Association Internationale de Techniciens, Experts et Chercheurs (AITEC)

Article 19

Attac

Baby Milk Action

Campaign for Press and Broadcasting Freedom

CCFD-Terre Solidaire.

Centre national de coopération au développement, CNCD-11.11.11

Chaos Computer Club

Collectif Ethique sur l’Étiquette

Collectif Informer n’est pas un délit

Collectif Roosevelt

Comité de soutien d’Antoine Deltour

Confédération paysanne

Corporate Europe Observatory

Courage Foundation

Council of European Professional and Managerial Staff (Eurocadres)

European Digital Rights

European Federation of Public Services Unions

European Network of Scientists for Social and Environmental Responsibility

Forum citoyen pour la RSE

Geneva Infant Feeding Association

GONG

Government Accountability Project

Groupe international d’études transdisciplinaires (GIET)

GM Watch

Health and Environment Alliance

Health and Trade Network

Ibfan Italia

Initiative für Netzfreiheit

Lasaire

Les Amis de la Terre

Les économistes atterrés

Ligue des Droits de l’Homme

LobbyControl

Movimento Allattamento Materno Italiano (MAMI)

Open Rights Group

Pesticides Action Network Europe

Pollinis

Public Concern at Work

Sciences Citoyennes

Sherpa

Syndicat des Avocats de France

Syndicat de la Magistrature

SNCS-FSU

SumOfUs

Transparency International EU

Udruga za samozastupanje

UGICT-CGT

Vrijschrift

WeMove.eu

The concerns indicated in the letter add up to the ones raised by EDRi in the process to the adoption of this Directive:

EU trade secrets Directive: threat to free speech, health, environment and worker mobility (23.03.2015)

https://edri.org/trade-secrets-directive-statement/

JURI Committee adopts disastrous Trade Secrets provisions (01.07.2015)

https://edri.org/juri-committee-adopts-disastrous-trade-secrets-provisions/

EU Trade Secrets Directive: A sad day for the freedom of expression (04.05.2016)

https://edri.org/eu-trade-secrets-directive-a-sad-day-for-the-freedom-of-expression/