from the no-public-interest-or-free-speech-exemptions dept
As Mike has reported, the core of the newly-leaked TPP chapter is about granting Big Pharma's wish-list, with other worrying stuff for the copyright industry's benefit thrown in for good measure. But hidden away in the chapter's 70+ pages there's something very different -- and very dangerous. Here's how the Australian newspaper The Age explains it:
The draft text provides that TPP countries will introduce criminal penalties for unauthorised access to, misappropriation or disclosure of trade secrets, defined as information that has commercial value because it is secret, by any person using a computer system.
That's clearly an incredibly broad definition of trade secret, and will allow a vast range of materials to enjoy this kind of protection. And by requiring criminal penalties, TPP aims to make that protection very serious indeed:
TPP countries may criminalise all such disclosures or, if they wish, limit criminal penalties to cases that involve "commercial advantage or financial gain"; are directed by or benefit "a foreign economic entity"; or are "detrimental to a [TPP] party's economic interests, international relations, or national defence or national security."
Notice that those are simply options: the default position is to criminalize everything. Moreover, even those "limited" cases could be applied very widely. Particularly troubling is the following aspect of the proposed text:
There are no public interest or free speech exemptions. Criminalisation of disclosure would apply to journalists working for commercial media organisations or wherever the leak was considered harmful to the "economic interests" of any TPP country.
The chilling effect that this would have on investigative reporting is evident. It would also represent yet another powerful reason not to become a corporate whistleblower.
The presence of this section in the latest TPP text is not a complete surprise: a slightly shorter version was already in the previous leak of this chapter, as we reported earlier this year. Moreover, its appearance in TPP seems to be part of a larger push for stronger protection of trade secrets around the world. In 2013, the European Commission proposed new rules "to help protect against the theft of confidential business information." One of the questions in the accompanying FAQ was whether trade secret protection will be part of TAFTA/TTIP. Here's the reply:
Trade secrets will be discussed in the TTIP negotiations, and has a heightened level of relevance with the recent allegations of economic espionage carried out by the national Security Agency (NSA). One goal could be to make sure that the two legal regimes are inter-operative facilitating recognition and enforcement of judgments on either side of the Atlantic. The EU and the US also have a common interest in pursuing protection of trade secrets against misappropriation in third countries.
That's a clear signal that trade secrets will indeed be part of TAFTA/TTIP. Unfortunately, the latest TPP leak gives a pretty good idea of just how bad they are likely to be.