Trade Secrets Directive: Protection for Journalists Strengthened After Outcry

European law-making institutions have strengthened the media exemption in the draft Trade Secrets Directive, in a political breakthrough that should pave the way to it being adopted later this year.

The Directive, which aims to harmonise EU-wide protection for commercially sensitive business information, sparked concerns about press freedom when it emerged that the original text drafted by the European Commission did not contain an exemption for journalists investigating companies..

Following pressure from media organisations, including the News Media Association, the European Parliament inserted a specific media exemption, but limited it to what was described  as “legitimate use” of media freedom. This was widely viewed as inadequate by the sector because of the concerns over how the term “legitimate” would be interpreted and fears that this would have a chilling effect on investigative journalism.

A compromise text has now been agreed by the European Commission, European Council and the European Parliament that reflects the changes called for by NMA in its representations to MEPs, UK officials and ministers. The text retains a specific media exemption but removes the term “legitimate”. The exemption reads: 

“Article Four

“Member States shall ensure that the application for the measures, procedures and remedies provided for in this Directive is dismissed when the alleged acquisition, use or disclosure of the trade secret was carried out in any of the following cases:

“(a) for exercising the right to freedom of expression and information as set out in the Charter of Fundamental Rights of the European Union, including respect for freedom and pluralism of the media.”

The Article also contains an exemption for whistleblowers “revealing a misconduct, wrongdoing or illegal activity, provided  that the respondent acted for the purpose of protecting the general public interest.

A vote by the European Parliament to approve the Directive has is expected in early March 2016. If it is approved by the Parliament and the Council it will be published in the EU Official Journal and come into force 20 days later.  Member states will then have two years to implement the Directive into national law.

Ministers have already assured the NMA that the Directive will not result in any changes to domestic law protections for journalists reporting and investigating business activities.