To the European Parliament, the European Commission and the Council of the European Union
New EU-directive on protection of undisclosed know-how and business information- 2013/0402 (COD)
The „Association of European Journalists“ (AEJ) is deeply concerned about a new „EU-directive on the protection of undisclosed know-how and business information“ (trade secrets).
In our view, the new regulation is likely to have a negative impact on press freedom, especially investigative journalism. Under the pretext of protecting the internal information of companies some provisions of the directive could hinder disclosure of illegal or unethical behaviour by companies, eg through tax-evasion (reference the „LuxLeaks“case).
We consider that recent amendments of the regulation in European Parliament related to media freedom and freedom of expression and the protection of journalistic sources are not sufficient. Some provisions leave open too much room for national courts which may allow prosecutions or even convictions of journalists and whistleblowers for unlawful disclosure of „trade secrets“. One example:
The directive stipulates that journalists must show that „the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest“. (Article 4/2/b)
There is a lack of clarity concerning the notion of „public interest“ concerning disclosure of documents.
Would it be lawful, for example, for media to inform the public that a company has evaded tax or that it pays only a small amount of tax in a particular EU-state or tax-haven?
Our concerns are shared by MEPs, other NGOs, the OSCE’s representative on Freedom of the Media or the „International Press Institute“ (IPI). In France a similar legal provision was scrapped after widespread protests by NGOs, journalists and other professional groups.
We urge all relevant persons, ministers, commissioners and MEPs to take account of these concerns, and to ensure that the necessary safeguards are in place in EU-regulations so that investigative journalism is not obstructed or made more difficult as a result of the new regulation.
Vienna, May 7th 2015
Otmar Lahodynsky, President, Association of European Journalists (AEJ)
Tibor Macak, General Secretary AEJ
William Horsley, AEJ-representative for media-freedom