European Greens Present Draft Law On Protecting Whistleblowers

from the pushing-back-against-trade-secrets dept

It’s a sad commentary on the state of transparency these days that whistleblowers have come to play such an important role in revealing wrongdoing and abuse, as numerous stories on Techdirt attest. At the same time, whistleblowers enjoy very little protection around the world. Indeed, a countervailing trend to strengthen protection for so-called “trade secrets” makes it increasingly risky to be a whistleblower today. A case in point is the European Union’s new law on trade secrets, which completed its passage through the EU legislative process last month. Although it contains some protections for whistleblowers, many feel they are insufficient. Here, for example is Julia Reda, the representative of the Pirate Party in the European Parliament:

The new law also created major uncertainties about the role of whistleblowers and investigative journalists. All information, including information about malpractice, can be protected as a trade secret. As a result, the burden of proof that the public interest outweighs the business interest will now always lie with the whistleblower.

To remedy those flaws, the Greens/EFA group in the European Parliament has put together a draft law. As well as the detailed text, there is a FAQ and a useful two-page summary, which is probably the best place to start.

The proposed EU Directive would introduce a uniform law protecting whistleblowers across the European Union. It would apply to both current and former employees and contractors, in all business sectors, both private and public.”Protected Disclosures” in this context:

concern harms or threats to the public interest that have occurred, are occurring at the time of the disclosure, or are likely to occur. Protection is given also to whistle-blowers who disclose inaccurate information in honest error.

The intention behind the disclosure doesn’t matter: what counts is whether it is in the public interest. Whistleblowers may use any channels, whether official or unofficial, and can be anonymous. One of the most important aspects of the proposal is the protection that would be offered:

exemptions from criminal proceedings related to the protected disclosure, including but not limited to prosecution for the disclosure of classified information, trade secrets or otherwise confidential information, exemptions from civil proceedings and disciplinary measures, and prohibitions of other forms of reprisal, including inter alia dismissal, demotion, withholding of promotion, coercion, intimidation, etc. Action taken against individuals other than the person who made the protected disclosure (for example colleagues or family members) may also constitute prohibited reprisal.

The situation regarding classified information and trade secrets is further clarified in the FAQ:

The Directive protects whistle-blowers who disclose trade secrets as well as confidential information related to national security, though a specific procedure is envisaged for the latter. In case of an overlap or clash between the whistle-blower protection directive and the trade secrets directive, the provisions to protect whistle-blowers must be complied with. The same is true where the information relates to national security issues. Thus, protection of trade secrets may not be invoked to the detriment of the whistle-blower concerned, even if the information revealed is not actually illegal in itself.

That approach is likely to be unpopular with many EU governments and businesses, which will make turning this whistleblower proposal into law a tough battle. Nonetheless, the Greens obviously hope that releasing this draft — which has no formal legal status — will help to raise awareness of the need to protect whistleblowers, and ultimately prod the European Commission into proposing its own solution to the problem.

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Comments on “European Greens Present Draft Law On Protecting Whistleblowers”

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Anonymous Coward says:

The commission is lobbyist central. Unless the Greens are able to collect enough lobbyists around this proposal, the commission will just ignore them.
The Council of Europe has already weighed in and is a great deal less happy about whistleblowers:
– Very unspecific language. If trade agreements are covered would likely rely on interpretation.
– The law is not envisioned to have forerank over other laws
– Identities are to be kept “confidential” as opposed to “anonymous” and it is even more unspecific in the appendix.
– As soon as a person goes public with information, his protection is forfeit and consequences at the national discretion…
– A clause is also included in which the system has to be proclaimed loud and proud to garner “positive attitude amongst the public”

Furthermore that is a “recommandation” (actually an appendix to a recommandation to be exact) that the political leaders will try to take into account in creating such laws, but there is nothing binding about it.

The Green groups paper is draft directive which is a binding EU-wide law and on top of that a lot more specific. The council will slam down a veto on it in seconds. They will refer to the recommandation, the subsidiarity principle and get it defined as a moral law, which is against the Lisbon Treaty – Not that institutions in EU respects that anyway…

Anonymous Coward says:

In a few months they’ll be gleefully announcing that the passing of these measures with a few minor amendments:

– Whistleblowers cannot be anonymous and must release information through protected channels.

– These protected channels will not protect the whistleblower from prosecution should anyone vaguely important ends up with egg on their face.

– All other whistleblowing channels will be prosecuted to the fullest extent of the law (which has now been expanded to allow up to life in prison, decided in secret, by a secret court, with the defendant not allowed to hear the case against him or retain a lawyer)

Mason Wheeler (profile) says:

Trade secrets are an archaic concept that literally should have died out centuries ago. We’ve all seen plenty of stories on here about abuse of the patent system, but how many people are aware of where it came from?

Trade secrets are the problem that patents were invented to solve. That’s literally how bad they are: the problem of people keeping their discoveries secret got so bad that the British government invented patents to put a stop to it!

Unfortunately, no one since then has had the good sense to follow through on it and officially abolish trade secret protection once and for all. Maybe it’s time someone did.

Wendy Cockcroft (user link) says:

Re: Re:

That sounds good enough until you realise that trade secrets existed to create and maintain a monopoly on particular items, e.g. Toledo steel. Removing the temporary monopoly privileges accorded to patent holders would cause secret-keeping to resume. Result: new discoveries being locked away forever, shared only with insiders.

The Wanderer (profile) says:

Re: Re: Re:

It doesn’t look to me like he was suggesting doing away with patents, probably for exactly that reason – only doing away with legal protection of trade secrets.

The patent system does need to be reformed, of course, but – as you say – eliminating it entirely would just send people back to secrecy instead.

Like Mason, however, I fail to see any purpose or benefit – except to the secret-holders – of enshrining trade secrets in the law.

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