commercial secrecy

New "business secrecy" law: a new weapon of mass deterrence?

The new law aimed at transposing into national law the European directive known as the business secrecy directive of June 2016 to provide a common European legal framework, prevent economic espionage or the "plundering" of innovations, undermines the citizen's right to be informed and freedom of expression, according to the Independent Press Union for Online Information (Spiil) and is considered by many journalists, especially investigative journalists, and whistleblowers, to be liberticidal. A new weapon of mass deterrence that challenges the public interest and citizens' right to information?
Ahe proposal for an LREM bill to protect "business secrecy" was adopted at first reading on Wednesday, March 28: 46 votes to 20. The text will be before the Senate on April 18.
According to the European Commission "Information protected by trade secrets can be strategic for decades (e.g. a recipe or a chemical component) or ephemeral (results of a marketing study, name, price and launch date of a new product)". Business secrecy must protect information in such a way that it is not "public" or "readily available". Thus, in order to be protected, the information must have "commercial value". Secret affairs are understood as "information that is not known or not easily accessible": a rather vague definition!
For the European Commission, "Business secrets are equally important for the protection of non-technological innovations. The dynamism of the services sector, which accounts for around 70 % of EU GDP, is based on the creation of innovative knowledge (...) Confidentiality in this key sector of the EU economy is used in the context of 'soft' innovation, which covers the use of various strategic business information that goes beyond technological knowledge, e.g. information about customers and suppliers, business processes, business plans, market research etc. »
This directive, which seeks to protect companies against the risks of economic and industrial espionage, is causing concern in the media ecosystem. A collective of journalists, associations, NGOs and trade unions signed a tribune in the World where it accuses this directive of allowing that"any information internal to a company can now be classified in this category." and that this "could prevent future revelations of cases such as the Mediator or the Panama Papers".
For the signatories of this forum, any information internal to a company could be classified as a "business secret" and lead to criminal sanctions against journalists. They believe that "this directive was drawn up by the lobbies of multinationals and investment banks that wanted a more protective right for their trade secrets and strategic projects, when document theft and intellectual property are already regulated by law.
France has considerable room for manoeuvre in transposing the directive into our national law, and can preserve freedoms while respecting European law. However, the government and the majority seem to have chosen, on the sly, to retain an option that seriously jeopardises the general interest and the citizens' right to information. The proposed law on business confidentiality has serious legal, social, environmental and health implications. Indeed, this text could lock up information on both the practices and products marketed by companies.
Indeed, the definition of "trade secrets" is so broad that any information internal to a company can now be classified in this category. A breach of business secrecy would occur once such information is obtained or disseminated, and its disclosure would be subject to criminal sanctions. »
As for Spiil, it regrets that the primacy of the right to be informed over the right to secrecy is not expressed with sufficient clarity in the proposed law. Whereas the French legislator considers freedom of expression to be a "derogation", the European text unambiguously affirms this primacy in its first article.
This lack of clarity creates a major risk, that of an increase in the number of litigation procedures. Newspaper publishers, often very small, do not have the means to support abusive procedures. However, some economic players are fond of these "lawsuits". This confusion is therefore likely to generate self-censorship, which is detrimental to our democracy.
If what is at stake in this text is indeed to ensure a balance between two rights, that of informing and that of keeping secrets for companies, then the Spiil asks the legislator and the public authorities to take into account the fundamental right of freedom of expression as enshrined in the law of 29 July 1881 by including it by name in the text of the law.
In our democracy, it is this law that organizes the balance between individual guarantees and the protection of fundamental freedoms. The law introduced by the legislator undermines this balance. We recall that the 1881 law frames the responsibility of press publishers. It provides the necessary guarantees to enable the judge to properly assess, in particular, the general interest value of the information revealed.
This text risks accelerating the unfortunate dynamic of the circumvention of press law by commercial law. The recent Challenges' case is a sad example of this. As a reminder, the weekly, summoned before the Paris Commercial Court by the company Conforama, whose economic difficulties it revealed, was ordered to remove the article from its site and no longer to publish an article on the subject. In the name of freedom of information, he appealed. 
In 2014, TourMaG, a press site specialising in economic news in the tourism sector, was condemned for publishing uncontested economic and social information about TUI, a major economic operator in this sector. For the first civil division of the Court of Cassation, this was a violation of the Labour Code and the 2004 law on confidence in the digital economy.
The Spiil therefore calls on the legislature to amend the law: to explicitly enshrine the primacy of freedom of the press, as defined by the 1881 law, over business secrecy from the very first articles; to make reference to the secrecy of sources; and to set up an ex-ante mechanism to prevent abusive procedures claiming business secrecy.
The Council of State, in his opinion delivered on Thursday 15 March last, echoes these concerns by stating "that among the lawful cases, and not among the derogations, should be mentioned the possibility of obtaining business secrets in the exercise of the right to information (...)".
The Spiil also regrets that this law has been subject to an accelerated procedure, preventing a calm debate, whereas the timetable for transposing the directive had been known since its vote in 2016.
In an interview with Challenges, Raphaël Gauvain, the LREM member of parliament who is responsible for this bill, tries to calm things down: "We are not going to be able to do anything about it. The aim is to protect companies from industrial looting. The text has been misread: the law does not apply to journalists and whistleblowers and there is no criminal sanction. We are only acting here in a civil framework. Finally, we have provided for very dissuasive fines against gagging procedures," those aimed at silencing the press.. »
The European Parliament has set a deadline of 9 June next for the application of this directive, on pain of financial penalties.


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