Proposition 54K3154

Projet de loi relatif à la protection des secrets d'affaires.

General information ¶

Submitted by

MR Swedish coalition

Submission date

June 12, 2018

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive industrial secret data protection commercial law intellectual property

Voting ¶

Voted to adopt

CD&V Open Vld N-VA MR

Voted to reject

Groen Ecolo PVDA | PTB

Abstained from voting

Vooruit LE PS | SP DéFI ∉ PP VB

Party dissidents ¶

• Olivier Maingain (MR) abstained from voting.

Contact form ¶

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Discussion ¶

July 17, 2018 | Plenary session (Chamber of representatives)

Full source

I am referring to the written report.

The Directive on trade secrets is a sensitive text, which has been the subject of ⁇ vivid debate in the European Parliament. Indeed, there is tension between two objectives to which, I think, we are all attached: on the one hand, the protection of the know-how of our companies, with the challenge of ending economic espionage between competing actors; on the other hand, the freedom of the press, the legitimacy of revealing reproachable acts, the possibility of informing the citizen.

Getting a balance is not easy. It is therefore not a coincidence that in other countries – I think in particular France – the transposition of this directive has aroused a virulent debate. I will quote in this regard the excerpt from a white card that was signed in France by dozens of NGOs, trade unions, associations of journalists, ordinary citizens: "Mr. President of the Republic, as always, the devil is in the details. The broad-spectrum definition of business secrets will allow companies to extract most of their information from the public debate. From now on, the law will give companies the power to prosecute anyone who dares to disclose sensitive information in the public interest. Pis, even before any publication, it will reinstate a form of censorship, a priori of the judge, abolished in 1881 by the law on the freedom of the press. In the hands of your deputies, this law is an unprecedented tool of censorship.”

Of course, the style of this white card is very incisive. But this clearly shows the contradiction between the two objectives present: that of protecting the know-how of our companies, on the one hand, and the freedom of information, on the other. And this shows well, therefore, the work needed to reconcile these issues.

However, I regret to say that in Belgium, this work to ⁇ a balanced text has completely gone to the trap. Before drafting the bill, the government did not find it useful to consult the associations of journalists. The government consulted the National Labour Council. This is a good thing. You have consulted the Intellectual Property Council. It is very good. But you did not consider that a consultation of journalists was necessary, despite the vivid debate in Europe and France. This is unfortunate, although, fortunately, we were able to correct this gap in commission. In fact, Mr. Minister Peeters gave his consent to hear in commission the associations of journalists.

One thing is to consent to invite and audition people, yet another is to listen and hear what they have to say. But the message sent by these associations of journalists was very clear. Yes, according to them, there is a risk that business secret legislation will be used for the purpose of intimidating journalists and whistleblowers. Yes, there is a risk that journalists will be prosecuted in the courts in the name of business secret, which will ⁇ create a risk of self-censorship in the journalistic profession. Therefore, yes, this bill needs to be amended because it carries insufficient tags.

Meanwhile, Mr. Mehmet Koksal, the project manager of the European Federation of Journalists, did not take this consideration lightly. He founded it, on the contrary, on two concrete examples that we all still have in mind: first, the case of the economic weekly Challenge condemned by the Paris Commercial Court for publishing an article on the financial difficulties of the company Conforama and the second, more famous, the case of LuxLeaks, where the journalist who originated the information was the subject of judicial prosecution for fourteen months. Certainly, he was acquitted at the end of a procedure, but oh how expensive! It is clear, the speaker said, that after fourteen months of costly prosecution, he and his boss will now think twice before embarking on a journalistic investigation.

This bill needs to be better balanced. To try to do so, we have submitted five amendments that, in accordance with the text of the directive, aim to limit abusive legal recourse and thus, to better protect freedom of expression and freedom of the press. The first two amendments aim to clarify the definition of trade secret. Indeed, the definition given in the project is too broad and causes legal uncertainty. It must be perfectly clear, before any judicial proceedings, that any information cannot be qualified as a trade secret, but only that which gives a competitive advantage to its holder and only that for which there is both a legitimate interest in keeping it confidential and a legitimate expectation of protection of that confidentiality. If this is not specified in the law, then the scope of business secrets is unduely extended and, in the future, any information including, for example, information relating to illegal tax practices can be qualified as business secret, which is totally contrary to the spirit of the directive.

The third amendment, which we have proposed and which we present here in the plenary session, proposes to clarify that the provisions relating to business secret do not prejudice the law of 7 April 2005 on the protection of journalistic sources.

In the committee, Minister Peeters said that was envisaged in the law. But that is not true! The draft law does not cite the law of 7 April 2005. However, we have been able to see in committee how sensitive this issue of the protection of journalistic sources is.

The fourth amendment calls for better protection of whistleblowers. Consideration 20 of the Directive provides for ways to strengthen their protection. If they have acted in good faith, within the framework of the protection of the right of alert, the judge must reject any request for the application of redress measures related to business secrets.

The fifth amendment states that appropriate sanctions should be provided in case of delaying or abusive proceedings. The bill chooses not to transpose Article 7 § 2 of the Directive. For journalists, this is a bad choice. They were very clear about this. We therefore propose to punish with a Level 6 penalty those who behave abusively or act in bad faith by submitting manifestly unfounded claims with the aim, for example, to delay, intimidate or harass the defendant.

These five amendments were developed in a committee and were simply rejected by the majority. Convinced of their relevance, we are presenting them today in plenary.

The transposition of this Directive is important for the protection of the know-how of our companies, but it will also have a significant impact on the exercise of the freedom of the press. I regret that this message has not been heard by the majority. A few hours after the commission vote, the association of professional journalists tweeted that it had in vain tried to persuade several majority parties to support amendments protecting journalists and whistleblowers.

This parody of parliamentary debate, because this is exactly what it is, is wrong. Therefore, my group will abstain from this bill.

The directive that we are transposing today will ensure the same level of protection of unrevealed business know-how and information throughout the European Union. This project directly concerns our SMEs, for which business secrets have a high economic value, essential for the development of innovation.

Until now, there was no legal framework in Belgian law aimed at protecting business secrets. They are also not considered as intellectual property rights.

These shortcomings are corrected by this text. This has received some comments regarding the protection of journalists and security guards exist in the field of justice. Finally, the protection of journalists, freedom of opinion and expression are the foundations for our group. The press must be able to work effectively if we want to sustain our pluralist system.

Mr. Speaker, this is an important text because it concerns the right to business secrets, protection against major industrial espionage, but also the freedom to inform for journalists and for our democracy. This is one of the foundations of our democracy. There is always tension, especially in this text, in the debates at committee meetings, in the hearings obtained. Indeed, a balance must be found between this fundamental freedom of information and the right to business secrets.

In particular, we, ecologists, have been ⁇ attentive to the freedom to inform investigative journalists, necessary for our democracy, as we have been able to observe in recent news, and whistleblowers, who have a considerable importance in denouncing unjust, misguided systems, who do an important good because they advance essential political causes. We therefore pay particular attention to this profession. Furthermore, we are pleased to have organized hearings of representatives of the media and journalists, demanded during the debates, which the majority of the government had not thought to hear.

The viewpoint of the Greens in the European Parliament regarding the adoption of the directive, since we are talking about a transposition of the directive, was already very clear: they voted against it because they believe, and we believe, that these matters relating to public health, the environment and the fight against tax fraud obviously cannot be obscured by a system of protection of business secrets. In order to protect our democracy but also our economy, our public health and our environment, this free collection of information must remain guaranteed.

In view of these tags, we can analyze the text currently debated. Clearly, the current text is insufficient for us because you did not take into account all the recommendations during the hearings.

In our view, the text currently goes too far in the protection of business secrets and we see a real danger – as it was raised during the hearings – for the protection of the work of journalists, investigative journalists and whistleblowers, ⁇ in the definition in the text, too wide for us.

In our opinion, in the current state of the text, tags are not sufficient to guarantee real protection for journalists and whistleblowers.

Mr. Speaker, in the text submitted to us today, we could simply say that this is a very faithful transposition of Directive 2016/943, but I would like to draw your attention to an important fact. Indeed, in a context where international competition is increasingly exacerbated and where cases of industrial espionage are not rare, it seems normal that the European Union, as an economic power, has a legislative arsenal on the subject. This includes the protection of ⁇ and the fight against industrial espionage.

It could be considered to be a balanced text because it highlights numerous exceptions and specificities in relation to the exercise of the protection of business secrets. Two important issues have been discussed in the committee. I will quote the reaction of the associations of journalists and other media actors who, I rightly think, have been moved by this text because they fear it may be a new means of pressure on them by large companies.

Remember that, in a world where the economy is ruling, these large financial firms benefit from a greater financial capacity and could benefit from procedural abuse or discourage the publication of certain information.

I also had the curiosity, like my colleagues, to take a look at the French text of the transposition. It is obviously very similar to the Belgian text, but we did not find the equivalent of Article 16 of our text, which highlights all the obligations of the judge when dealing with an action concerning business secrets. But there is indeed a concern.

I would like to return to the fact that the Association of Professional Journalists was asking about the fact that journalists are immunized against certain provisions of the law. I would also like to return to the fact that these media and journalists’ hearings resulted in a lot of proposals. Mr. Minister, I have the impression that you have heard them but not listened and that, in the text, there is a certain number of shutters missing.

I would therefore like to refer to this interpellation that I had against the government in 2016, where we already asked not to support the directive in the state and to defend in the next Council of the European Union an interpretation of Articles 2 and 4.

Mr. Minister, you were committed to doing so, but nothing changed in the text, which was actually intended to be modified to define as illegal only the acquisition, use or publication of a business secret by a person acting with an economic interest. This has not been done and, beyond this point, remains what journalists or journalists’ associations have told us, but also fears about whistleblowers.

These fears have already been discussed in the committee and let me tell you that if we have already had the opportunity to gather a committee in this Parliament on the problem, in particular, of the dieselgate, it is well because warners had mentioned things. When we even look at the corrections that are made on a number of engines compared to diesel engines, at the moment, we have not yet solved the problem in its entirety.

I think the articles in the text here are much too wide and that the guards are insufficient. I think we are going to create an amalgam in this regard. Mr. Minister, can you tell us if you will eventually be a stakeholder or willing to carefully monitor law enforcement, the procedures launched, and see with the Parliament and the associations whether an assessment would not require additional warnings to allow a good balance between business protection, the right to information and the actions that whistleblowers can take?

I think the text is not balanced and could be revised in the light of the experience. I thank you.

Our role as a national legislator calls us to transpose the European Directives into our domestic law.

It should be remembered that a European directive differs from a regulation in that it sets goals for us to ⁇ , thus leaving us the freedom to assess which measures are the least threatening to our freedoms to ⁇ it. The Directive 2016/943 on the protection of business secrets which this bill aims to transpose is part of it.

It should be noted that the protection of business secrets is necessary to safeguard their business value and fair competition among ⁇ . In order to be fully effective, such protection must be subject to harmonised rules at least among the Member States of the European Union. In our domestic law, there is also no general and uniform legal framework for the protection of business secrets, as the rules vary according to the field concerned, thus being found at times in the Law of 1978 on Labor Contracts, at times in the Code of Economic Law, at times in the Civil Code and the Criminal Code.

The bill aims, just and legitimate, to clarify our legal framework by specifying when obtaining, using or disclosing a business secret is lawful or unlawful. The transposition of that Directive was therefore welcomed, but with the fundamental precision that it provides for a minimum harmonisation of this matter, leaving the Member States the responsibility to provide for greater protection against the unlawful acquisition, use and disclosure of business secrets and provided that certain safeguards for the protection of the interests of third parties are implemented.

It was precisely for the purpose of fixing these essential safeguards that my colleagues requested the hearing of representatives of professional associations of journalists, following which amendments were submitted. While it is important to guarantee the protection of companies against the theft of their industrial secrets or their disclosure to competitors or to the general public, this protection can sometimes come into conflict with the general interest that requires an enterprise to publish its accounts and report its major decisions, in particular to its employees. Likewise, journalists and whistleblowers believe that the right to inform must be able to justify the disclosure of certain information, namely unlawful acts committed by a company, but also facts that, although sometimes qualified as legal, are nevertheless contrary to ethics. There are scandals like LuxLeaks and the Panama Papers.

The proposed amendments thus aim at a better balance between the protection of business secrets and respect for our fundamental freedom and, more specifically, the right to information. They pursue several goals. To clarify, first, the notion of disclosure of business secret by stating that the disclosed information must provide a competitive advantage to its holder, so that the disclosure in the public interest can not be qualified as unlawfully disclosed business secret, therefore to be punished as such.

This is the position defended by some French deputies in the framework of the legislative text voted last June in France and, today, examined by the Constitutional Council. This position defended by the French deputies was unfortunately not held by the French National Assembly. This is a missed opportunity since, as the French magistrate, Mr. Éric Alt, vice president of Anticor, the association against corruption and for ethics in politics, emphasized, the text voted in France places the journalist in a position of defense to demonstrate to the judge that the disclosure of facts has a general interest.

A second goal in finding the balance between protecting business secrets and respecting our fundamental freedoms is to strengthen the protection of freedom of expression and the protection of the secret of journalists’ sources. The provisions concerning business secrets shall not prejudice the exercise of the fundamental rights enshrined in international or supranational law and the Constitution, in particular the right to freedom of expression and information, including respect for the freedom of media pluralism.

If this clarification is useful, it would nevertheless have had a more certain effect if the whole national law which forms part of this equal pillar to be respected, in particular the Act of 7 April 2005 on the protection of journalistic sources enshrining the right of journalists to silence their source of information, had also been covered by that provision.

A third objective, always in the search for the balance between the protection of fundamental rights and the protection of business secrets, aims to ensure better protection of whistleblowers in full compliance with the Directive, by adding to the cases of rejection of an application for compensation for the unlawful acquisition or use of business secrets the cases where the defendant acted in good faith in the exercise of the right to report.

While transparency should be the rule and secrecy the exception, the logic of the text is exactly the opposite and will therefore force whistleblowers to provide proof of their good faith to be protected.

A fourth goal for a proper balance is to introduce sanctions in case of dilatory or abusive proceedings against a journalist and, possibly, his sources, in order to avoid possible manoeuvres aimed at silencing the press.

Despite the necessity of these amendments, none were accepted by the majority. This rejection suggests that the framework proposed by Europe prevents adequate protection of investigative journalists and whistleblowers, while that should not be the case. Europe, on the contrary, sets a framework, but States have the responsibility, as with each transposition of a directive, to supplement or even clarify this framework with measures to best preserve our fundamental freedoms, among which is the freedom of expression which only exists if there is a freedom of investigation, of investigation, in particular for journalists, and of protection of their sources.

For this reason, my group will abstain from voting on this bill. I thank you.

Mr. Speaker, in the committee, Mr. Peeters had expressed moderate enthusiasm for this bill aimed at transposing the European Directive on the protection of business secrets into Belgian law. A moderate enthusiasm because, for him, it was a simple formality, a simple transposition of a series of provisions to avoid industrial espionage.

The lively debate that took place when the directive was adopted at European level in 2016 already suggested that it was much more than just a formality. In reality, with this text supposed to simply protect companies from theft of their business secrets by competitors, it is exploited to open the possibility of prosecuting also non-competitors. These are dangerous provisions for journalists and whistleblowers.

Over the years now, more and more scandals reveal the dubious practices of multinational companies. Logically the priority would be to create a legal framework to encourage and protect whistleblowers. But here, it is exactly the opposite that is done! Is it really surprising in view of the multinationals such as Nestlé, Michelin, Alstom (and the entire chemical industry) who pushed for the adoption of this European directive, as Martin Pigeon of the Corporate Europe Observatory (CEO) revealed? The main challenge for these multinationals rather than industrial espionage is to have legal tools to prevent the publication of confidential and compromising information about their dubious practices such as the Panama Papers scandal and others.

Antonio Gambini, responsible for research on tax justice at CNCD-11.11.11, pointed to the fundamental problem of this directive, saying that in practice, this text will prevent "exercising democratic control over entire branches of economic activity".

Minister Peeters tried to reassure us in the committee by saying that journalists and whistleblowers had nothing to fear. However, the Association of Professional Journalists of Belgium does not share this opinion. They demanded that amendments be made to the text, which the minister and the majority refused.

The fundamental problem lies in the fact that this legislation provides only relative and controversial protection for whistleblowers and the media. The warranties introduced in the form of exceptions to the protection of business secrets are largely insufficient.

I limit myself here to two points. First, we put the burden of proof on the warnors. It is up to them to prove the well-foundedness of their action and to prove that they have acted in order to protect the public interest. Then, the drafting of tax rulings, ruling for multinationals, as the PwC firm did, is a practice as questionable as legal and is therefore not covered by the exceptions to the protection of business secrets.

It should also be emphasized that these new provisions are part of a Belgian context in which there is no overall protection for whistleblowers, as the Association of Professional Journalists also recalled during the hearings. There is no shortage of commitments and political statements. The Dieselgate Commission reports on this. The European Parliament has adopted a resolution on this subject. The Panama Papers committee’s report speaks about it even though it wasn’t very avant-garde as a provision or, in any case, as a recommendation. These beautiful words remain words in the air. In practice, nothing has been done.

The legislation that we are called to vote today will clearly not improve things. The Association of Professional Journalists has cited several recent cases in different European countries indicating that companies do not hesitate to use this type of legislation to prevent the work of investigative journalists or whistleblowers. They cited abusive prosecutions against journalists and their sources, as in the case of LuxLeaks, but also the censorship of articles related to the difficulties of companies or the risk of self-censorship in the profession.

I would like to highlight the risk this bill poses in terms of justice transparency. In a trial where a business secret is invoked, all parties will be kept secret during the trial and even after it with criminal penalties at the key against those who will not respect that secret. The judge may also take special measures such as restricting access to documents, hearings and even judicial decisions.

In conclusion, this legislation endangers the right to inform. With this bill, the protection of business secrets will prevail over the general public interest. This extension of the cult of secrecy is a new attack on our democratic rights in a context where trade unionists are condemned, where the right to strike is broken in the SNCB or in prisons, where RTBF journalists are jailed because they dare to film a center that will lock children.

The PTB-GO cannot accept this bill. Freedom of information is a pillar of democracy. It is time to prosecute the major fraudsters and financial offenders rather than punish the citizens who report them.

There are no other speakers, then I give the word to the government.

We have discussed in a committee all the arguments that are again raised here in plenary. Regarding the press, among other things, I would like to repeat the answer I gave in commission. First of all, I would like to emphasize that freedom of expression and information, which includes freedom of the press and media pluralism, constitutes an important value in a free and modern society. I believe that the bill contains sufficient safeguards to not jeopardize the investigation, information collection and reporting of journalists and whistleblowers.

I have submitted a number of elements in this committee. First, not everything you want to communicate falls under the definition of professional secrecy. The definition clearly refers to information which is secret, which thus possesses trading value and which is subject to measures to keep this information secret.

I also referred to article 7 of the bill. The acquisition, use or disclosure of a business secret shall be deemed lawful insofar as it is required or permitted by national or European law.

I emphasized that we can think of regulations on freedom of expression, freedom of the press and the law on the source secret.

In the event that the acquisition, use or disclosure of trade secrets by a journalist or a whistleblower would still be considered unlawful, two exceptions for this particular situation are also provided for in the new article 11.332/5 of the Code of Economic Law, article 9 of the draft law. The claim should be rejected in those cases. This article literally refers to the freedom and pluralism of the media or disclosure of misconduct.

Finally, if the acquisition, use or disclosure of a professional secret by a journalist or whistleblower is deemed to be unlawful and the exceptions established in one way or another could not be applied, the court must still take into account the new Articles 11.336/3 of the Code of Economic Law and 1369quater of the Judicial Code. According to those provisions, when making a judgment, the court must take into account a number of elements, including the legitimate interests of the parties and the potential effects of the measures it may impose, the legitimate interests of third parties and the protection of fundamental rights. Those provisions allow the court to moderate its judgment if the consequences for the journalist or whistleblower would be excessive.

I assume that those provisions effectively protect journalists and whistleblowers and contain the guarantees for this.

Since the very interesting hearing has been mentioned, I would also like to quote Mr Fernand de Visscher. I quote from the report: “If the concepts behind definitions are clearly respected, Mr de Visscher does not foresee problems with the definition of trade secret formulated in the Directive. This will keep a fairly large proportion of relevant information available to investigative journalists because they do not fall within the definition of professional secrecy.” The speaker thus considers that the new legislation on the protection of trade secrets protects investigative journalism. Everyone who acts in good faith shall be free from persecution.”

During the hearing, prominent lawyers also spoke. They provide sufficient assurance that the concerns I share with my colleagues and that are formulated here are not necessary.

I agree with Mr. De Lamotte, We will evaluate the legislation. In practice, if we encounter problems and find that this is not going in the right direction, we will obviously be able to write a law. However, I am convinced that legislation is good and that there is no danger, contrary to what some think. We must give the law a chance and give ourselves the opportunity to enforce it. If we find problems after a year, we can write another text if necessary.