Freedom of the media and trade secrets in Europe

Abstract

This chapter analyzes how freedom of expression and freedom of the media form part of the EU’s recent Trade Secret Directive. Freedom of the media is closely linked to freedom of expression: it is often the media that delivers the information and enables public’s access to information. Freedom of expression and freedom of the media are cornerstones of democracy, as without critical public debate over important information one cannot have oversight over authorities and form opinions needed for political decisions. This is why media is often called the fourth power or public watchdog. It is apparent that when regulating protection of information against its disclosure, one needs to reconcile interests related to the protection of information with public’s right to access and have debate over such information. Yet, values related to freedom of expression and media were not among the core issues, even though recognized, when the EU Commission’s proposal for the Trade Secret Directive came out. The Commission’s proposal and the impact assessment were mostly motivated by a perceived need to protect business interests, European competitiveness and innovation. But in the end and partly due to pressure coming from media organizations, the final Trade Secret Directive provides rather ambitious rules on freedom of expression. Its Article 1(2) provides that protection of trade secrets shall not have an impact on freedom of expression. More particularly, the Directive sets under Article 5 explicit exceptions for freedom of expression and whistleblowing. Namely, Article 5 requires that exceptions would be applicable when the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases: (a) for exercising the right to freedom of expression and information as set out in the Charter, including respect for the freedom and pluralism of the media or; (b) for revealing misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest. The aim of this chapter is to analyze these provisions and their connection to freedom of the media. As the Trade Secret Directive’s national implementation period ended in Summer 2018, there is no case law, at least at the EU level, on the interpretation of these specific provisions. Nonetheless, this chapter proposes how these provisions should be interpreted. In addition to considering potential ways to interpret the provisions this chapter also considers the possible reasons for the approach adopted under the Trade Secret Directive and why it must be different to the one under the copyright context. The first Part of this chapter elaborates freedom expression and freedom of the media under the human right instruments to highlight their fundamental role and value in a democratic society and to give a context for the particular freedom of expression exception under the Trade Secret Directive, which will be discussed in Part II. In order to evaluate the interpretative premises, the chapter looks in addition to the text of the Trade Secret Directive, how the Court of Justice of the European Union (CJEU) has interpreted freedom of expression and related exceptions under the EU’s copyright regime and explains how and why interpretations under the Trade Secret Directive would differ from the interpretations under the copyright regime. To shed further light on the Trade Secret Directive’s provision on whistleblowing, Part III discusses in addition to the Trade Secret Directive’s whistleblower provision the Whistleblower Directive and considers the particular role whistleblowers have on freedom of expression. Before conclusions, I analyze how the protection of whistleblowers has developed under relevant case law of the European Court of Human Rights (ECtHR), as it likely affects the interpretation of the provisions studied in this Chapter. I argue that freedom of expression under the Trade Secret Directive has a particular role, different from the function of freedom of expression under the EU’s copyright doctrine. This specific nature seems to bring freedom of expression as a fundamental right into the center of the Trade Secret Directive. The particular role freedom of expression has under the Trade Secret Directive also highlights the protection of whistleblowers, as there is a nexus between freedom of expression and whistleblower protections, both being essential elements of the well-functioning media freedom. In conclusions, I highlight the fundamental and unprecedented role freedom of expression and media has under the Trade Secret Directive.