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MT 17 April 2016

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maltatoday, SUNDAY, 17 APRIL 2016 6 News CONTINUED FROM PAGE 1 The reso- lution, which passed by 503 votes to 131, was opposed mainly by MEPs from the European Green Parties and the United European Left, which claim there are no proper safeguards for investigative journalists and whisteblowers who leak information. Labour MEPs Alfred Sant and Marlene Mizzi, and Nationalist MEPs David Casa, Roberta Met- sola and Therese Comodini Cachia voted in favour. Labour MEP Miri- am Dalli was absent. Broadly trade secrets can be technical – manufacturing pro- cesses, recipes, chemical com- pounds – and commercial, such as customer lists, marketing studies, product data: much akin to data such as Mossack Fonseca's client list and those of the HSBC private bank in Geneva. Journalists were quick to con- demn the proposal back in 2013, with a petition against the direc- tive launched by investigative jour- nalist Élise Lucet collecting almost 500,000 signatures. While the law is intended to pro- tect small companies who depend on confidentiality to protect their research, Lucet said that the ap- proved law gives secrecy excessive protection. "With this directive, you would have never heard of LuxLeaks, the Monsanto pesticides scandal, or the Gardasil vaccine scandal," she said. International journalists' unions and even French MPs say the law would allow EU states to endanger whistleblowers and journalists. "Coming just a week after the Panama Papers leaks, which have again underlined the vital role of whistleblowers and investigative journalists in shedding light on crucial information in the public interest, this is a major blow and has been criticised by LuxLeaks whistleblower Antoine Deltour and the journalist that reported on the scandal, Edouard Perrin," Ger- man MEP Julia Reda told MEPs on Thursday. The French journalists' union says it resembles a blanket right to corporate secrecy. And the Eu- ropean Federation of Journalists (EFJ) says that despite valuable im- provements on the original draft from the European Commission, the newly adopted directive raises doubts as to whether journalists and in particular their sources are appropriately protected. "Exceptions foreseen under Ar- ticle 5 for the exercise of freedom of expression and information are not clear enough, which means that safeguards for freedom of the media will largely depend on how national governments imple- ment the Directive. In addition, whistleblowers are potentially left exposed insofar as they will be held to prove that the disclosure of in- formation is made 'for the purpose of protecting the general public in- terest'," the EFJ has warned. It is unclear how something like the Panama Papers, which leaked 11.5 million documents from Mos- sack Fonseca, would affect "in- fringers" who pass such confiden- tial documents to journalists. The directive MEPs voted on says that it is up to member states to ensure their laws would dismiss cases from companies when the disclosure was carried out "for exercising the right to freedom of expression… including respect for the freedom and pluralism of the media", and to reveal misconduct or illegal activity "provided the respondent acted for the purpose of protecting the general public interest". But much of the offshore tax ar- rangements worked out by Mos- sack Fonseca and even their Euro- pean agents were also legal insofar as was allowed by national laws. Therese Comodini Cachia, who addressed the plenary on Thurs- day, welcomed the directive large- ly because it provided researchers and investors with much-needed protection. "European research- ers were in limbo on safeguarding their work until it was advanced enough to entitle them to register it or publish it under their name." But it was an ironic twist for the same body of lawmakers who in 2015 awarded former Pricewa- terhouseCoopers whistleblower Antoine Deltour the European Citizens' Prize for having revealed Luxembourg's sweetheart tax deals for multinationals, under the premiership of Jean-Claude Juncker – today the president of the European Commission. Those revelations were funda- mental to MEPs in November who called for country-by-country re- porting of multinationals' profits so that they pay full tax on their earnings. Those plans were pre- sented to the public by the Euro- pean Commission this same week. What the law says The directive, informally agreed with ministers before the vote, in- troduces an EU-wide definition of "trade secret", meaning: • information which is secret; • has commercial value because it is secret; • and has been subject to reason- able steps to keep it secret. It would oblige EU member states to ensure that victims of misuse of trade secrets are able to defend their rights in court and to seek compensation. The agreed text also lays down rules to protect confidential information during legal proceedings. Rapporteur Constance Le Grip, from the centre-right European People's Party, claims the law bal- ances out the protection of the fundamental freedoms of opinion, of expression and of the press, with the rights for redress for vic- tims of corporate theft. The law defines an 'infringer' as anybody who has unlawfully ac- quired, used or disclosed a trade secret. But 'unlawful' acquisition will in- clude unauthorised access of copy- ing of electronic files that contains the trade secret, "any other con- duct considered contrary to hon- est commercial practices", anyone who is "in breach of a confidential- ity agreement", or any other duty not to disclose the trade secret. Additionally, it will be unlawful for journalists – critics says – to publish the information, since 'infringing goods' that have used 'trade secrets' cannot be brought to market. mvella@mediatoday.com.mt animal welfare newspaper.indd 5 15/04/2016 4:28 PM Trade secrets law could muzzle press sources As politicians pay lip service to the Panama Papers, Maltese MEPs vote for a law that could target journalists and their sources who divulge 'trade secrets' Julia Reda (Greens, German MEP) "This directive will expand corporate secrecy and, contrary to the claims of some previous speakers, it will endanger and deter whistleblowers and investigative journalists… "Let me tell you: European voters will not understand if two weeks after important revelations we respond to the Panama Papers by strengthening corporate secrecy. We must get the balance right, and this directive at this point clearly does not." Therese Comodini Cachia (EPP, Maltese MEP) "This directive is one way of providing researchers, as well as those who invest in research, with much- needed protection. It will enhance the value of innovation and research by providing legal certainty, where none existed to date… To date, European researchers have depended heavily on uncertain ways to protect their work from being unjustifiably taken by others." Antoine Deltour, LuxLeaks whistleblower "In 2012, I gave documents to a journalist whose publication triggered the Luxleaks scandal. I was awarded the European Citizen Award by the European Parliament last year for this. But both I and the journalist are now being prosecuted in Luxembourg for trade secrets 'violation'. The exemptions foreseen in this directive to supposedly protect whistleblowers would not protect me, nor the journalist, because we did not reveal anything illegal, just immoral. "This directive will enable companies to sue anyone who accesses, uses or publishes an information that they consider a trade secret, which, according to the definition foreseen in the text, can be almost any internal information. It applies to all citizens and not, as it should, to economic competitors only. Before you vote this directive, I urge you to reflect on this question: do you really want a society where it is impossible for the public to access information crucial to the public good?" European Federation of Journalists "Whistleblowers are potentially left exposed insofar as they will be held to prove that the disclosure of information is made 'for the purpose of protecting the general public interest'. This could lead to significant legal uncertainty and chilling effects on journalists as they would be required to prove that the whistleblower's intention was in line with the requirements of the Directive before even being able to use disclosed public interest information." WHAT THEY SAID

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