TRADE SECRETS AND THE RIGHT TO INFORMATION: A COMPARATIVE ANALYSIS OF E.U. AND U.S. APPROACHES TO FREEDOM OF EXPRESSION AND WHISTLEBLOWING
Abstract: In this so-called “information age,” when numerous
companies are collecting and creating more and more data and
information, it is important to consider how the interests of these
companies can (and should) be reconciled with the public’s
interests in information, or what the Universal Declaration of
Human Rights labels the “right to information.” Having expended
money to create their stores of information, these companies often
claim the need to protect it from all “unauthorized” uses, but our
laws have never gone so far. To the contrary, information is not
protected unless the law says it is, and when it is protected the
scope of protection is usually limited. Thus, there is an information
dichotomy that courts should consider; on one hand various laws
seek to protect certain types of information, while other laws and
legal principles are designed to promote the expression and
diffusion of information.
Sometimes the information dichotomy is reflected in the laws
themselves which often limit the scope of protectable information
and explicitly allow certain uses of information. Other times, or in
addition, the dichotomy is reflected in the application of ancillary
principles of law which, in effect, serve as additional limitations on the scope of protection.
This article examines the information
dichotomy of trade secret law in the United States and the
European Union, focusing on two ancillary principles of law:
freedom of expression and whistleblowing. The central premise of
the article is that the public policy favoring information diffusion is
the rule and trade secret protection is an exception. Seen through
this prism, it is important for courts to consider the public’s
interest in free expression and whistleblowing in all trade secret
cases.
Authors: Sharon K. Sandeen and Ulla-Maija Mylly
PDF: //ncjolt.org/wp-content/uploads/sites/4/2020/04/Sandeen_Final.pdf
Volume: Volume 21, Issue 3