EU Trade Secrets Directive Debate Shouldn’t Focus on Free Speech

On June 16, 2015 the report on the draft Trade Secrets Directive by rapporteur Constance Le Grip, was adopted by the vast majority of the members of the European Parliament’s Legal Affairs Committee (19 in favor, 2 against and 3 abstentions). Informal talks will now start with the European Council in view of reaching a first-reading agreement.

In a previous post we reviewed some of the arguments that have been used by the lobby against the Trade Secrets Directive. One of the more popular arguments, is that these rules would excessively limit the fundamental right of freedom of speech. For instance, opponents argue that the proposed rules would allow owners of trade secrets to prosecute journalists or whistle-blowers if confidential business information became public. Not surprisingly, this concern was raised with the Legal Affairs Committee.

To us, the insertion of explicit provisions with respect to freedom of speech, and even an explicit reference to the EU Charter of Fundamental Rights, in a directive that deals with trade secrets seems at least anomalous. As rapporteur Le Grip stated: “there are sufficient safeguards that no lawyer in the world would advise their client to sue a journalist [merely?] based on the Trade Secrets Directive.”

To the extent there is a conflict between trade secrets protection (which in essence boils down to protection of intangible property) and freedom of speech, it seems that conflict is already resolved in international treaties, constitutions of different EU member states and well-established case-law. Free speech is a fundamental right, as is the right to (intangible) property. In the end these fundamental rights will have to be weighed against each other on a case-by-case basis. .

It is clear that the final word has not been said about this topic. In fact, before the final draft will go to a plenary vote (probably end of November 2015), there is still plenty of opportunity to lobby and room for discussion.

The primary impact of the measure, however, is only delay.  As a practical matter, the inclusion or non-inclusion of such a provision is not likely to impact the rights of corporate clients under the Trade Secret Directive.