Written by 18 h 30 min Advocacy, Press release-en, Protecting the public debate litigation

#StopTradeSecrets : Before the EU Directive has even passed, some Senators try to introduce trade secret protection in the ‘Digital’ Bill

Paris, 26 April 2016  – On Wednesday 26 April, the Senate’s Committee on Social Affairs passed an amendment introducing the notion of trade secret in the Bill on the Digital Republic. This Bill, which is above all supposed to guarantee citizens’ access to public data, thus creates a discretionary right to secrecy.

Indeed, access to public data (in particular relating to procurement contracts) is currently limited by the protection of commercial and industrial secrecy, which covers “the secrecy of processes, economic and financial information, and commercial strategies” (1). This very broad definition already makes it possible to reject a large number of access to information requests, and is supported by abundant case-law. However, the Senate’s Committee on Social Affairs has made the choice to considerably expand the definition of commercial and industrial secrecy, specifying in Article L311-6 of the Bill that it also includes trade secrets. According to amendment 233’s  explanatory statement, there is no point in ‘specifying the manner in which this secrecy should be assessed, since it is understood that such assessments must be carried out on a case-by-case basis, taking into account the context in which each request for access was made’ (2).

And with good reason: the notion of trade secret is nowhere defined in French law. A definition is offered by the EU Directive passed by MEPs on 14 April in spite of broad-ranging protests from citizens and trade unions, and which must be adopted by the Council of the European Union on 17 May before it is implemented into national law. We consider this Directive to be dangerous for freedoms, notably because its definition is broad and vague – which enables it to cover almost all of a company’s internal information – and because it enables companies to bring suit against any person who may divulge a trade secret even if it is not used to commercial ends. The draft Directive therefore gravely endangers freedom of speech about corporations and citizens’ ability to access information concerning the social, environmental or sanitary consequences of corporate practices. It also endangers access to basic information concerning the budgetary consequences of private contracts signed by elected officials, notably public-private partnerships, under which public authorities may commit to significant amounts for significant amounts of time. A European coalition of 54 organizations is calling for the rejection of this draft Directive.

The amendment’s first reading at the Senate will begin during the plenary session on Tuesday, 26 April. We call upon Senators to reject the amendment which introduces the notion of trade secret in this bill on the Digital Republic, since it will restrict public authorities’ ability to provide information that is essential to the public good. We also call upon the government to take a stand on this issue and to reject both this amendment concerning trade secret and the Directive on which it will formally have to vote in Brussels on 17 May. The trial of Antoine Deltour and Edouard Perrin, the whistleblower and the journalist whose work led to the Luxleaks case, started on 26 April. They are being prosecuted in Luxembourg in the name of trade secret protection. Two weeks ago, François Hollande congratulated journalists and whistleblowers for their bravery in the Panama Papers case: ‘I thank whistleblowers, I thank the press for mobilizing (…) it is thanks to a whistleblower that we have this information (…) they take risks, they must be protected’. Which policy do the Senate and the government wish to promote today, protecting the right to inform the public, or suppressing it?


[1]              http://www.cada.fr/le-secret-en-matiere-commerciale-et-industrielle,6239.html

[2]              http://www.nossenateurs.fr/amendement/20152016-325/COM-233

[3]              https://act.wemove.eu/campaigns/les-lanceurs-d-alerte-en-danger

Last modified: 28 July 2023