Freedom of the media and trade secrets in Europe

This chapter analyzes how freedom of expression and freedom of the media form part of the EU’s recent Trade Secret Directive. It is apparent that when regulating protection of information against its disclosure, one needs to reconcile interests related to the protection of information with public’s right to access and have debate over such information. Yet, values related to freedom of expression and media were not among the core issues, even though recognized, when the EU Commission’s proposal for the Trade Secret Directive came out. The Commission’s proposal and the impact assessment were mostly motivated by a perceived need to protect business interests, European competitiveness and innovation. But in the end and partly due to pressure coming from media organizations, the final Trade Secret Directive provides rather ambitious rules on freedom of expression. Its Article 1(2) provides that protection of trade secrets shall not have an impact on freedom of expression. More particularly, the Directive sets under Article 5 explicit exceptions for freedom of expression and whistleblowing. It argues that freedom of expression under the Trade Secret Directive has a particular role, different from the function of freedom of expression under the EU’s copyright doctrine. This specific nature seems to bring freedom of expression as a fundamental right into the center of the Trade Secret Directive. The particular role freedom of expression has under the Trade Secret Directive also highlights the protection of whistleblowers, as there is a nexus between freedom of expression and whistleblower protections, both being essential elements of the well-functioning media freedom. In conclusions, the chapter highlights the fundamental and unprecedented role freedom of expression and media has under the Trade Secret Directive.