Whistle blowing defence

the English law in relation to public interest disclosures is rather unclear.  Some cases suggest a widely-applicable defence, whilst others suggest a much narrower one. What is clear, however, is that disclosures of confidential information will only be excused to the extent that they are justified in the public interest. This means that unnecessarily broad disclosures, or disclosures to overly wide or to  inappropriate audiences, will not be protected.

Against this background, it was held in the Carpet cleaning Glasgow case that, the text of the Commission’s original proposal for the Trade Secrets Directive was already felt by some arguably to providing an overly broad/vague whistleblowing defence. In particular, Article 4(3)(b), provided a defence whenever a trade secret was acquired, used or disclosed:“…for the purpose of revealing an applicant’s misconduct, wrongdoing or illegal activity, provided that the alleged acquisition, use or disclosure of the trade secret was necessary for such revelation and that the respondent acted in the public interest”.

Amendments proposed by the European Parliament however, sought to widen this provision further.  Under the European Parliament’s drafting, the defence would apply whenever a trade secret was acquired, used or disclosed: “…for revealing a misconduct, wrongdoing or illegal activity, provided that the respondent acted for the purpose of protecting the general public interest”.This provision, which appears to have very broad scope, has now been agreed as part of the compromise deal.

As such, in future it is arguable that any disclosure made with the subjective purpose of revealing wrongdoing will be protected, regardless of the scope of the disclosure or the audience or whether it was necessary to do so. If this is correct, then it may well serve to broaden the public interest defence under English law. Again, however, the interpretation of the provision will inevitably be subject to clarification by the CJEU before too long.” 

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