Trade secrets: the fuzzy line between freedom of information and intellectual property rights
In late November 2013, the European Commission released its proposed directive on the “protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure” with the objective of reinforcing the protection of so-called trade secrets.
This proposal was strongly supported by multinational corporations and corporate lawyers. Its broad and vague scope makes it impossible to fully assess the consequences it would have in practice, but early analysis indicates that if adopted, the regulation would allow industry to claim immunity from the responsibility to publicize information on a wide array of allegedly “confidential” business practices. Unfortunately, the broad legal definition of exactly what trade secrets cover poses threats to consumers, journalists, whistleblowers, researchers, and workers. The proposed regulation provides for severe penalties that would endanger the work of individuals or organizations lacking the resources to defend themselves effectively in the event of abusive litigation, like investigative journalists, whistle-blowers, and small and medium-sized companies.
CIEL was one of fifteen organizations to prepare and support a statement expressing opposition to this proposed directive. Restricting information from medical, environment, and food safety sectors can have a direct impacts on public health. What’s more, the principles interfere with just journalism and whistle-blowing, and threaten the rights of workers who find themselves locked into company secrets and unable to attain jobs with companies in overlapping fields.
Consider the following example: companies could use trade secret protection as legal grounds to refuse to inform the public about hazardous ingredients in everyday products, such as cleaning materials and clothing. When these products are used or disposed of, the hazardous materials they contain can cause potentially irreversible damage to local ecosystems, resource supplies, and human health. Not only would workers within the companies endure disproportionally high, dangerous exposure to the materials, but it is likely that they would either not be fully informed of the dangers or may not even be permitted to describe them in specifics to healthcare professionals. Shouldn’t consumers reserve the right to understand the impacts of their purchases? Shouldn’t workers reserve the right to feel secure in their workplaces?
The EC’s proposal is now in the hands of the European parliament. The Council and the European Parliament must amend the directives to safeguard the health and safety of EU citizens and the environment; this includes revising the definition of trade secret and ensuring that information that could affect the public interest remains unrestrained.
Originally posted on March 21, 2015.