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.