On 14 April, eleven days after the Panama Papers confirmed the central role of journalists and whistle-blowers in revealing illegal or unethical business practices, the European Parliament approved rules to protect corporate trade secrets that could seriously hinder future revelations. Although the purpose of the Trade Secrets Directive is to protect firms within the EU from corporate espionage by foreign rivals, on closer examination many feel that business could use the law to prosecute journalists and whistle-blowers for exposing corporate bad behavior.
The European Federation of Journalists (EFJ), along with other media associations and press freedom organisations, believed that they had achieved a clear exception for journalists after extensive lobbying of European institutions. What was not clear was the protection given to whistleblowers, who are usually critical in proving information about corruption and other wrong doings.
Shortly after the Directive was passed the EFJ put out a statement that European journalists and media associations were concerned that the Directive could, after all, put journalists at risk, limiting their ability to investigate and report about business and whistleblowers were now left exposed. Their statement went on:
“The European Federation of Journalists (EFJ), Reporters Without Borders (RWB), the European Magazine Media Association (EMMA), the European Newspaper Publishers’ Association (ENPA) and the European Broadcasting Union (EBU – UER) take note of the adoption of the Trade Secrets Directive by the European Parliament today in the plenary… Despite valuable improvements of the original draft, the newly adopted Directive still raises doubts as to whether journalists and in particular their sources – whistle-blowers – are appropriately protected. Exceptions foreseen under Article 5 for the exercise of freedom of expression and information are not clear enough, which means that safeguards for freedom of the media will largely depend on how national governments implement the Directive. In addition, whistleblowers are potentially left exposed insofar as they will be held to prove that the disclosure of information is made “for the purpose of protecting the general public interest”.
“This could lead to significant legal uncertainty and chilling effects on journalists as they would be required to prove that the whistleblower’s intention was in line with the requirements of the Directive before even being able to use disclosed public interest information.”
At the same time the Socialists and Democrats (S&D) in the European Parliament who voted for the measure, put out a statement justifying, with a late reservation, their support for the Directive: “ …Yesterday the European Parliament voted on the final text of the Trade Secrets Directive. Considering that the S&D Group has been a strong negotiator in order to ensure that workers’ rights are guaranteed, and whistle-blowers and media freedom are protected, our Group voted in the favour of the agreed text.
“Regarding the reservations expressed on part of certain trade unions and organisations on whether the new law could be used to prevent employees and journalists from exposing wrongdoings in the work place, we need to be very clear – both whistle-blowers and journalists are expressly exempted from the scope of this law. If this was not crystal clear in the text, we would not have supported it. The exception explicitly states that it applies not only to those exposing illegal activity but also misconduct or wrongdoing provided they acted for the purpose of protecting the general public interest.
“However it is not enough that whistle-blowers are exempted from this particular law, as we have seen they can still be trialled under different national or EU laws.
“Therefore the S&D has called on the European Commission to put forward new proposals to protect whistleblowers in the EU exposing illegal or unethical activities and is committed to fight until this happens.”
Now you may well ask the questions as to why they did not try to get these commitments written into the Directive and given that they are not, just how long will it take to achieve them, and in the meantime what are journalists and whistleblowers meant to do? We seem to be facing conflicting legislation, good for some lawyers, bad for journalists and whistle-blowers.
So while our comrades in the S&D group pursue their ‘new proposals’ attention shifts to the 28 member states who will over the next two years decide whether to incorporate the new directive into national law. This will be an interesting exercise is seeing just how national parliaments actually act as the peoples’ watchdogs in matters such as these. We will need to start campaigning through the NUJ and other press freedom organisations in the UK and Ireland to stop the incorporation of this dodgy directive into our laws.
The UK record is not good. We are already in a battle to stop the worst excesses of the Tories Investigatory Power Bill (often called the Snooper’s Charter’) now before parliament, which weakens existing safeguards for journalists and risks their data being accessed by law enforcement agencies, giving the state widespread powers to intercept internet and telephone communications, which also put sources at risk.
Lawyers through the Bar Council also have serious concerns about the bill which, they believe, will threaten ‘Legal Professional Privilege’ which is not about the rights of lawyers, but of their clients to have their conversations with their legal representatives kept confidential. Failure to protect that privilege amounts to a significant derogation of a fundamental constitutional right which is part of the foundation of the rule of law, the Society believes.
So in the UK we need to step up the campaign against the ‘Snooper’s Charter’ which has already received its second reading and prepare to campaign against the new Trade Secrets Protective Directive, unless that is, there is a vote to leave the EU on 23 June which could derail it.