Sam Gyimah MP
Department for Business, Energy & Industrial Strategy
1 Victoria Street
London
SW1H 0ET
Wednesday 14 March 2018
Dear Mr Gyimah,
Transposition of EU Trade Secrets Directive
We are writing regarding the UK’s imminent transposition of the EU’s Trade Secrets Directive. Our
primary concern is to ensure that this law which is aimed at protecting legitimate trade secrets, does
not hinder public scrutiny of corporate activities, or the publication of stories such as ‘Luxleaks’
which exposed the widespread use of officially-sanctioned corporate tax avoidance schemes in
Luxembourg. We have a number of concerns regarding the Intellectual Property Office’s
consultation on the UK application of the directive, including that it does not propose to transpose
any of the important exceptions set out in Article 5 of the original directive. We firmly disagree with
this approach, for the following reasons:
Whistleblowers. We consider that protections for whistleblowers are essential and it is imperative
that the existing provisions in UK law contained in the Public Interest Disclosure Act are included
and strengthened within the transposed directive. We otherwise fear that transposition would create
legal ambiguity about protection for whistleblowers in the UK and a ‘chilling effect’ which could
stop whistleblowers from coming forward to raise public interest concerns in the future. Similar
protections are required for trade union representatives who legitimately disclose information
about a company’s activities to other employees or the media.
Journalistic freedom. When transposing the directive, the UK should ensure that the exception for
journalists on the grounds of freedom of expression (Article 5) is unambiguously included. This is
to ensure that there is a clear direction for both journalists and judges when applying the directive.
This protection was a clear commitment arising out of the debates around the ‘Snoopers Charter’
and yet no progress has been made by the UK government to date.
Public authorities and the information they release. We wish to ensure that the Trade Secrets
Directive does not, even inadvertently, lead to a ‘chilling effect’ on public authorities who fear
being sued for damages when releasing commercial data under freedom of information laws. The
directive must not undermine freedom of information laws by creating legal ambiguity about the
situations in which commercial information can be legitimately released.
We have the following additional concerns:


UK transposition should introduce a limitation period of one year maximum for companies
to bring a legitimate case under the directive. We are very concerned that the consultation
currently proposes the maximum allowable limit of six years (five years in Scotland). This is
demonstrably unfair when compared with the three month time limit afforded to workers
with a whistleblower claim under the Public Interest Disclosure Act. Furthermore, there
should be strict restrictions on the damages which can be sought, especially from individuals
such as employees, yet this is not currently indicated in the consultation’s proposal.

 

The transposition should include strong language which penalises abusive litigation on trade
secrets which is aimed at preventing legitimate scrutiny of commercial activities. We are
disappointed to note that the IPO does not consider transposition of this Article (seven in the
original directive) to be necessary.

We hope that you will be able to reassure us that you share our concerns and that the UK
transposition of the Trade Secrets Directive will respect and strengthen the rights of whistleblowers,
public authorities, trade unionists, journalists and employees. Our concerns emanate from the welldocumented1 fact that the development of the Trade Secrets Directive by the European Commission
was undertaken with the cooperation of, and major inputs from, large commercial interests, and the
European Parliament was not able to subsequently amend the directive sufficiently so as to place
the public interest centre-stage. It is imperative that the UK’s transposition of the directive remedies
this imbalance.
We would be pleased to meet with you to discuss this matter further and we look forward to your
response.
Yours sincerely,
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ARTICLE 19, Thomas Hughes, Executive Director
Campaign Against the Arms Trade, Ann Feltham, Parliamentary Co-ordinator
Corporate Europe Observatory, Vicky Cann, Campaigner
Courage Foundation, Naomi Colvin, Acting Director
DeSmog UK, Mat Hope, Editor
Ethical Consumer, Rob Harrison, Director
Friends of the Earth (England, Wales and Northern Ireland), Liz Hutchins, Director of
Campaigning Impact
GeneWatch UK, Dr Helen Wallace, Director
Global Witness, Charmian Gooch, Co-Founding Director
Greenpeace UK, John Sauven, Executive Director
Jubilee Debt Campaign, Sarah-Jayne Clifton, Director
National Union of Journalists, Michelle Stanistreet, General Secretary
Public Concern at Work, Francesca West, Chief Executive
Real Media, Kam Sandhu, Editor/Founder
Spinwatch, David Miller, Director
Tax Justice Network, John Christensen, Director
The Media Fund, Thomas Barlow, Founder
Transparency International UK, Duncan Hames, Director of Policy
Trade Justice Movement, Jean Blaylock, Coordinator
We Own It, Cat Hobbs, Director
WhistleblowersUK, Tom Lloyd, Chairman
David Lewis, Professor of Employment Law and Head of the Whistleblowing Research
Unit, Middlesex University

Contact address for correspondence: Vicky Cann, vicky@corporateeurope.org

1 https://corporateeurope.org/power-lobbies/2015/04/towards-legalised-corporate-secrecy-eu