Today, June 12, 2018, the confidentiality clause was established at European level, included in Directive 2014/53/EU for all mobile devices at risk to human health (mobile phones, tablets, laptops and connected toys for children…). This has taken place at the same time as the European directive on business secrecy is in the process of being adopted by the French National Assembly and the Senate despite exceptional citizen mobilization.
To mark this black day, Dr. Marc Arazi, President of Phonegate Alert, and Mr. Jérôme Karsenti, lawyer at the Paris Bar, cosigned this opinion piece, published on the guest blog of Mediapart on 11 June 2018.
Read the article and please relay widely to those around you.
The Phonegate scandal prey to business secrecy
Marc Arazi and Jérôme Karsenti denounce the entry into force of the confidentiality clause of the European directive which allows « the manufacturers of mobile devices to benefit from total confidentiality for products they will place on the European market that may be a risk to human health ».
12 JUNE 2018 will remain a sad date for all citizens who for a number of weeks have been protesting against the control of the business world over public health and environmental violations denounced by many media representatives and whistleblowers.
Telephony manufacturers in particular will soon be completely protected to produce and sell phones whose harmfulness can no longer be denounced.
On June 14, 2018, the National Assembly, despite a petition that collected more than 570,000 signatures, and the mobilization of NGOs and associations committed to public freedom, will pass the law establishing the directive on business secrecy.
This law establishes business secrecy as a principle without its definition making it possible to determine its form. It no longer protects media companies that could be prosecuted before commercial courts. It excludes whistleblowers from the protection of the Sapin 2 law when a trade secret is alleged, thus protecting telephony manufacturers from any revelations about the risks to public health posed by the manufacture of phones.
14 June 2018 is two days after the entry into force of the final phase of the Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonization of the laws of the Member States relating to making mobile devices available on the market and transposed into French law by the Order of 21 April 2016 and the Decree of 21 April 2017. This is the date chosen by the Directive to allow mobile device manufacturers to benefit from total confidentiality for the products they place on the European market that may present a risk to human health.
Billions of devices which make up our daily lives are directly concerned, such as Wi-Fi, multimedia tablets, Wi-Fi routers, laptops, Bluetooth devices, mobile phones, remote-controlled toys, GPS devices, in fact all the devices using electromagnetic waves.
Products with health risks: secrecy becomes the rule
For this powerful economic sector, the European Commission has chosen to endorse a system which will guarantee (in Article 5) total secrecy for manufacturers concerning « types of radio equipment within categories affected by a low level of compliance with the essential requirements set out in Article 3.” It is specifically this section that requires that these devices ensure « the protection of health and safety of persons and of domestic animals ».
Technocratic cynicism is total. The established Directive lays down the principle of health protection, but immediately sets out a protective exception for companies which would not respect the principle that has been laid down. It even ensures them an unstoppable system of protection: « the commission makes available to manufacturers a central system allowing manufacturers to register the required information. That system shall ensure appropriate control of access to information of confidential nature”.
Tailor-made regulations to protect manufacturers from legal action
This new Directive, which cancels and replaces RED Directive 1999, is to be viewed in a very specific context. Indeed, since July 2016, « Phonegate Alert » has warned the public and public authorities of a complete failure of European and international regulations that has allowed manufacturers to overexpose hundreds of millions of mobile phone users in their real use of these devices, in contact with their bodies, for more than twenty years.
We know from tests carried out by the French National Frequencies Agency (ANFR) between 2012 and 2016 on several hundred mobile phones that the Specific Absorption Rates (SAR) (1) are well above European regulatory limits (2W/kg), some of which may exceed the authorized thresholds by nearly 4 times, and even more if we refer to the American standards (1.6W/kg), some smartphones being real microwaves in our pockets, exceeding 25 W/kg.
For the past two years, ANFR has been trying to use all kinds of delaying tactics to keep these tests secret. Following the actions taken by Dr. Marc Arazi before the Commission for Access to Administrative Documents (CADA), then before the Administrative Tribunal, the agency in charge of radio frequency control had to set up a DATA site on 1 June 2017, then on 8 March 2018, publish nearly 443 mobile phone test reports.
But ANFR definitely has a problem with transparency. It still refuses to publish original test reports signed by certified laboratories.
The question we are asking publicly is: will it be possible from 12 June to continue to obtain this information and to communicate it to the public?
And even more, if we have some tests performed on mobile phones sold in France, we have no idea of the exposure levels generated by tablets and laptops that are on the lap of users for hours each day, especially children and young people.
Economic law stronger than democracy: its weapon “secrecy”
At a time when the government is in the process of legislating and transposing the European Directive on « business secrecy » into French law, the application of Directive 2014/53/EU, which has so far concerned no one, would nevertheless give new prominence to the attack on the freedom of information and the obstacle that this constitutes for whistleblowers.
A company’s information or know-how is secret if three conditions are met under Article 1 of the law on business secrecy:
- It is information known by a limited number of people;
- It has a commercial value because of its secret character;
- It is subject to specific safeguards « including an explicit statement that the information is confidential.” (Amendment No. 57).
Thus this tautological formulation allows a company to protect any information it wishes to be covered by business secrecy. In short, business secrecy covers what the company decides to consider as secret. Unstoppable and efficient. The law has no say and it will be up to the company to define the scope of the information and know-how it wishes to cover with the sacred seal of secrecy.
It would have been possible and easy to amend the text by reversing the burden of proof and requiring the victimized company to demonstrate the violation of its know-how or confidential information in order to benefit from it. It could also have been relevant for the legislator to limit from Art 1 what does not fall within the scope of business secrecy and to make a non-exhaustive list that would make it possible to understand its sense: the environmental and health impact, the working conditions of employees, information of a fiscal nature, etc….
To avoid any polemical implication, the proposed legislation should have restricted the scope of business secrecy to competitive situations only.
The principle of this law is quite different. Business secrecy will be fully protected until proven otherwise, thus allowing companies and groups in a dominant position to silence any detractor who would attempt disclosure solely for reasons of general interest or public information, by using « gag procedures » at will.
The Sapin 2 law had given whistleblowers a status and a role that the transposition of the law definitively undermines.
The « business secrecy » law protects those who would have revealed in good faith, « a fault, a reprehensible act or an illegal activity », which limits the area of the authorized disclosure to these three acts. Thus, many of the revelations of recent years (Mediator for example), would not be covered by the exceptions. The notion of « good faith » that was not in the directive is added to the law, further increasing the burden of proof for those who will have to defend themselves against accusations of unjustified disclosures.
But the great perversity of the law resides in the rest of the text which adds « including when exercising the right of alert as defined by article 6 of the law of 9 December 2016 » (Sapin 2).
Article 6 of the Sapin law not only excluded for whistleblowers facts, information or documents covered by medical secrecy, professional secrecy between a lawyer and his client, and national defense secrecy, but also protected them for revelations which concern « a serious threat or prejudice to the public interest », which is much broader than the three cases of the business secrecy law alone.
The « including » of the law thus requires the whistleblower to comply with the text of the « business secrecy” law and consequently adds a fourth covered secret, « business secret ». Thus, in the course of the transposition of a directive, the French Parliament has just gutted the substance of the Sapin 2 Law on whistleblowers who will no longer be protected when they reveal facts that companies have wished to protect. Several Members proposed by amendment to replace « including » with « or », which would exclude any risk to whistleblowers. Without success…
Thus, the strength of the lobbies within the European institutions gradually contributes to stifling citizens’ resistance capacities by silencing them by means of texts that crush freedom.
The Phonegate scandal (2) was just beginning to be known to the public following the withdrawal from the French market, in recent days, of the first phones at risk to health. The latest regulatory surge may have definitively shut down the possibility of revelations about major health risks for the hundreds of millions of users of mobile devices.
Citizens and consumers are well aware that behind these cynical texts, dictated by economic powers, is not only the threat to health and the environment, but also and above all the seizure of political power by groups of influence indifferent to human destiny.
14 June 2018 will in future symbolize the day of action for unfailing transparency in defense of the general interest of European citizens.
(1) The Specific Absorption Rate (SAR) represents the amount of energy carried by radio frequency waves received by the user of a mobile device (e.g. mobile phone)
(2) The origin of the term “Phonegate” is attributed to the “Le Monde” journalist, Pierre Le Hir, in a 23 December 2016 article entitled « Soupçons sur les ondes des téléphones portables ».
Jérôme Karsenti, lawyer at the Paris Bar and member of the National Bar Council
Dr. Marc Arazi, President of the NGO Phonegate Alert