The analysis not only covers the explicit rules under the trade secret laws, it also provides an outline of how these principles have been developed under applicable constitutional law doctrine. This article proposes how these provisions should be interpreted when taking into account the relevant human rights doctrines and explains how and why such an interpretation would differ, for example, from the interpretation that the Court of Justice of the European Union (CJEU) has favored under the EU’s copyright regime. In the US, while some case-law exists related to trade secrets and the First Amendment, the whistleblower provision of the DTSA is new and untested. We believe that information diffusion is the rule therefore restrictions on information diffusion should be carefully circumscribed.Īs the relevant trade secret legislation in the EU has been just recently implemented, there is no case-law at the date of writing that explains the interrelationship between trade secret protection, freedom of expression and whistleblowing. The main objective of our article is to examine how the freedom of expression and whistleblower provisions of EU and US law can and should be balanced against trade secret rights. In our recent article we highlight the diffusion side of this dichotomy. Much less has been written about the information diffusion side of the dichotomy, particularly as it relates to the human right (and need) to ‘seek, receive and impart information’.

Much has been written about trade secret law and policy from the protection side of the information dichotomy. The dichotomy is between the strong public policy that favors and encourages the creation and dissemination of information and knowledge and laws, such as the EU Trade Secret Directive and DTSA, which enable individuals and businesses to protect certain categories of information from acquisition, use, or disclosure by others. The questions arise because there is an information dichotomy that exists in law, particularly with respect to trade secret laws. (EU) 2016/943) and the EU Whistleblower Directive in the EU and the Defend Trade Secrets Act of 2016 (DTSA) in the US. These are questions that both the EU and US must face with respect to its trade secret laws, particularly considering the adoption and implementation of the EU Trade Secret Directive (Dir.

Thus, the essential question is: How can these competing interests be evaluated and balanced? Two related questions are: How and when should the balancing occur? There is no dispute that some types of information can and should be handled confidentially in some circumstances, but it is also clear that the disclosure (or sharing) of such information may be needed in the public interest, for instance, as evidence of illegality, including fraud and corruption. With news of whistleblowers, alleged spies and breaches of confidence entering the public consciousness of late, it is important to consider how the public’s right to discover and learn information of importance should be balanced against the interests of governments, businesses and individuals in the confidentiality or secrecy of certain information.

Defend trade secrets act