The “Panama papers” would they have been possible with the directive on commercial confidentiality? – The world

Read: the European Parliament adopted the Directive on trade secrets

This text now forced twenty-eight European states to take measures within two years to translate the directive into their national legislation, and establish penalties for those who violate the secrecy.

the journalist of France 2, Elise Lucet, who launched a petition last June, was worried the “ danger on the economic journalism investigation .”

such a directive would it have made impossible the work of the European members of the International Consortium of investigative journalists (ICIJ)? And she will impede further investigations involving companies?

• Why such a directive?

The European People’s Party right party that defended the text, alarm constant increase in violations of business secrets: in 2013, a company in the European Union four have reported at least one case of information theft (against 18% in 2012). But these numbers themselves are questionable, since they are from the 2013/2014 balance sheet famous American firm of Kroll business intelligence, which sells its services to companies and therefore has every incentive to emphasize the risks to which the latter are exposed.

in fact, we must see behind the adoption of this text the work of the multinational lobbies service with interests in Europe, as shown by the survey of the Corporate Europe Observatory (an NGO based in Brussels), the British collective Bureau of Investigative Journalism and Mediapart. This survey describes how the Trade Secrets and Innovation Coalition ( “Coalition for commercial confidentiality and innovation”), which includes groups such as Alstom, Michelin, Solvay, Saffron, Nestlé, General Electric, Intel has managed to create the need for legislation on business confidentiality, as there is a “defense secret”.

Europe has realized that the French Government had failed to : such a provision was included in the Macron law but was eventually withdrawn by the government

• What does the EU directive

the text adopted by a large majority of MEPs is to protect businesses, especially SMEs, against the economic and industrial espionage. In case of theft or illegal use of confidential information (technological innovations, but also economic data or any other document), victims can seek redress before the courts in Europe.

According to the supporting statement, the application of the directive should not hamper the activities of whistleblowers. The authors thus explain:

“The protection of business secrets should therefore not extend to cases where disclosure of a trade secret is the public interest, insofar as it can reveal misconduct or other wrongdoing or directly relevant illegal activity. “

Problem: the whole question will lie in the definition of” professional misconduct “and” relevance “of revelation. It was already the problem for the French bill, which also included the notion of relevance (until he retired in January), as stressed Christophe Bigot, a lawyer specializing in media law:

“it’s the judge to decide the relevance of information: he will simply say that there is a social plan in a company or can we give up the number of affected jobs? This could be very arbitrary. As it stands, economic journalist is put under close supervision. “

Read: Freedom of information would she really threatened by the” business secrets “?

Green MEPs had sought to explicitly specify in the directive that journalists could not be condemned for doing their job. But this was not done.

“This will create a shift in the burden of proof for journalists, who must prove that the dissemination of information was legitimate believes his side Véronique Marquet, lawyer and member of the collective Informer is not a crime. This is equivalent to ask if they are willing to take the risk of being sentenced, which is a real weapon of deterrence available to companies. “

• ” Panama papers “would they have been compromised?

In the specific case of” Panama papers, “the question of the feasibility of journalism in this context arises. The ICIJ gained access to over 11 million files from the archives of the Panamanian firm Mossack Fonseca that demonstrate the extent of the domiciliation of offshore companies system and its use by political, economic or sports.

Several European banks and companies are directly involved, through the exploitation of correspondence between them and the cabinet for example. They would therefore have been able to use this Directive to request the sentencing of journalists who published articles on these issues.

Now, by itself, hold an offshore company is not illegal. What is reprehensible is the use of these systems to hide money from the tax authorities of his country. But the evidence does appear that after a long investigation. And if the tax situation has been rectified in the meantime, the reporter can not justify its publication by the revelation of a “directly relevant illegal activity” .

Read decryption: Offshore: what is legal, what is not

the cases related to” Panama papers “with only immoral character or concealer would not more could be revealed if the EU directive on trade secrets had been in force two weeks ago.

• What will it take for the next revelations?

as part of a scandal like the LuxLeaks, revelations by the press would have been even more difficult, since tax evasion activities were not illegal, but instead made with the approval of the Luxembourg administration. The originally whistleblower scandal, Antoine Deltour, is also pursued by the Luxembourg court, as the journalist Edouard Perrin, who published these revelations.

Read the zoom: Edward Snowden, Stephanie Gibaud, Hervé Falciani … What happens to whistleblowers?

The concerns are also bright on the side of environmentalists and health, since many scandals revealed in recent years (Mediator, fake software Volkswagen …) would not have been published without the involvement of whistleblowers, who are mostly employees of the company or of the public.

They would struggle to be justified under the Directive on the secret Business. The France is in the process of including specific protection for whistleblowers in the Tree II law, MEPs and environmentalists argue for equivalence at EU level.