The Trans-Pacific Partnership is likely to hand companies a valuable new tool to stop whistleblowers revealing corporate wrongdoing with “trade secret” protections to be inserted into the domestic law of every TPP signatory.

The final draft of the TPP intellectual property chapter, revealed by WikiLeaks last week, confirms that Australia abandoned its concerns about the inclusion of a “trade secrets” paragraph that will require signatories to:

“… provide for criminal procedures and penalties for one or more of the following: (a) the unauthorized, willful access to a trade secret held in a computer system; (b) the unauthorized, willful misappropriation of a trade secret, including by means of a computer system; or (c) the fraudulent disclosure, or alternatively, the unauthorized and willful disclosure of a trade secret, including by means of a computer system.”

A previous draft of the IP chapter also released by WikiLeaks in 2013 showed Australia flagging concerns about a previous version of the paragraph, but, if anything, the final text is even stronger than the 2013 text. The 2013 text was the subject of widespread criticism about its impact on corporate whistleblowing, with the potential for any confidential information, even that showing corporate illegality, to be deemed a “trade secret”.

Plainly sensitive to that criticism, the final text agreed to last week contains two significant footnotes relating to the “trade secrets” section:

“145. For greater certainty, this Article is without prejudice to a Party’s measures protecting good faith lawful disclosures to provide evidence of a violation of that Party’s law. 146 Drafter’s note: The Parties understand that this Article is without prejudice to a Party’s measures in relation to whistleblowing.”

The footnotes appear to address the concerns about whistleblowing — except in the case of Australia, they don’t, because Australia’s existing laws offer little protection for corporate whistleblowing. A 2014 international survey found that, while Australia had protections in place for public sector whistleblowers (albeit in a limited, highly conditional form) we had poor protections for private sector whistleblowers, including a lack of protection for anonymous complaints.

This isn’t an arcane issue: a European Union draft directive issued last year on trade secrets has been criticised for not protecting whistleblowers and journalists, especially given a journalist behind the “Luxleaks” revelations about European tax evasion was prosecuted in a Luxembourg court for theft; in 2008, a Boeing whistleblower in the US was prosecuted for “felony computer trespass” (note the reference to “in a computer system” in the TPP text); last year a US company sued a former employee who had revealed its products were unsafe for, inter alia, theft of trade secrets; one US law firm offers companies advice on how to navigate whistleblower protections in order to prosecute employees for trade secret theft. US case law seems to suggest that if whistleblowers take any documents or materials that turn out to be surplus to the issue they are revealing, they are liable for prosecution.

Given the Immigration department is using the Australian Federal Police to pursue people who have revealed human rights abuses in offshore detention centres, and the Australian Border Force legislation that aims to jail staff and contractors who reveal abuses, the TPP “trade secrets” provision will merely be consistent with this government’s ongoing war on whistleblowing.

Peter Fray

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