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However, the protection granted by the Directive is not absolute. Article 1(2)(b), bolstered by Recital 11, concedes that secrecy will take a back seat if the ‘Union or national rules require trade secret holders to disclose, for reasons of public interest, information, including trade secrets, to the public or to administrative or judicial authorities for the performance of the duties of those authorities’. 

With regard to trade secrets in general, in the Microsoft case, the CJEU held that a refusal by Microsoft to share interoperability information with a competitor constituted a breach of Article 102 TFEU.

Although trade secrets remained protected from the public and competitors, Google had to disclose Page Rank parameters to the Commission as the administrative authority for the performance of its investigative duties. It is possible that a similar examination will take place in the recently launched probe in Amazon’s treatment of third-party sellers. 

For instance, in February 2020, the District Court of the Hague held that the System Risk Indication algorithm that the Dutch government used to detect fraud in areas such as benefits, allowances, and taxes, violated the right to privacy (Article 8 ECHR), inter alia, because it was not transparent enough, i.e. the government has neither publicized the risk model and indicators that make up the risk model, nor submitted them to the Court (para 6 (49)).

Article 22 still remains one of the most unenforceable provisions of the GDPR. Some scholars (see, e.g. Wachter) question the existence of such a right to explanation altogether claiming that if the right does not withstand the balancing against trade secrets, it is of little value.

In 2019, to ensure competition in the platform economy, the European Parliament and the Council adopted Platform-to-Business (P2B) Regulation. To create a level playing field between businesses, the Regulation for the first time mandates the platforms to disclose to the businesses the main parameters of the ranking systems they employ, i.e. ‘algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools’ while recognising the protection of algorithms by the Trade Secrets Directive (Article 1(5)).

The recent Guidelines on ranking transparency by the European Commission interpret the ‘main parameters’ to mean ‘what drove the design of the algorithm in the first place’ (para 41).

The German Interstate Media Law that entered into force in October 2020, transposes the revised Audio-Visual Services Directive, but also goes well beyond the Directive in tackling automated decision-making that leads to prioritization and recommendation of content.

This obligation to ‘explain the algorithm’ makes it the first national law that, in ensuring fairness for all journalistic and editorial offers, also aims more generally at diversity of opinion and information in the digital space – a distinct human rights dimension. If the provision proves enforceable, it might serve as an example for other Member States to emulate. 

Lastly, the draft DSA grants the newly introduced Digital Service Coordinators, the Commission, as well as vetted researchers (under conditions to be specified) the powers of data access to ensure compliance with the DSA. The core of this right, however, is undermined in Article 31(6), which effectively allows the platforms to refuse such access based on trade secrecy concerns. 

This shows that although addressing algorithms in a horizontal instrument is a move in the right direction, to make it enforceable, the final DSA, as well as any ensuing guidelines, should differentiate between three tiers of disclosure: 1) full disclosure – granting supervisory bodies the right of access, which may not be refused by the IP owners, to all confidential information; 2) limited disclosure – granting vetted researchers the right of access limited in time and scope, with legal guarantees for protection of trade secrecy; and 3) explanation of main parameters – granting individuals information in accessible language without prejudice to trade secrets. 

The Appeal Court based its decision on the fact that right holders' unions and societies were financially unable to cover the costs of injunctions, whilst ISP/IBPs were.

he appeal decision went further by stressing that their order was also justified by fact that the defendants generated profits from internet users accessing the infringing websites. As a result, the Court breached ISP/IBPs' freedom to conduct business (as protected by Articles 16 and 52(2) of the Charter of Fundamental Rights of the European Union).

Nevertheless, the Supreme Court insisted that the judiciary had jurisdiction to require of ISP/IBPs to perform any necessary measures against copyright infringement on the internet, thanks to the 2000 Directive on electronic commerce and the 2001 InfoSoc Directive (tranposed into national law under Article 6-1-8 of the 2004 'LCEN' Act). The Court held that the dispositions provided a lawful basis to have the costs of injunctions charged against ISP/IBPs. This is because as "technical intermediaries" ISP/IBPs are  "best placed to bring such infringing activities to an end", the Court say, quoting the words of the InfoSoc Directive (Recital 59) directly. 

. First, it confirmed that neither ISPs nor IBPs were liable for secondary infringement so long as they had no knowledge of the infringing activities or that they acted sufficiently promptly to put an end to the known illegal acts upon notification by right holders. Second, the Supreme Court reasserted that ISP/IBPs were under no statutory obligation to undertake surveillance work of internet users.

The Supreme Court judges see nothing under EU law that would prevent national courts from attributing all costs to intermediaries.

"despite their non-liability, access and hosting providers are legally bound to contribute to the fight against illicit material and, more specifically, against the infringement of authors' and neighboring rights" ; "...[O]n the basis of the pure point of law, the decision of the Court of Appeal was legally justified". 

on the other hand, that neither ISPs nor IBPs demonstrated that the performance of the measures would represent an unbearable sacrifice, or that their costs would endanger their economic viability

It is very interesting to see French Courts give so much weight to the financial situation of the parties and the (alleged or potential) revenues generated by ISP/IBPs from infringing websites, in their application of liability rules. Indeed, the latter are usually framed as pure questions of law, disconnected from economic realities.

We will have to wait to see whether the position of the French court catches on in other jurisdictions, or not.

If it’s the latter, then we have to move away from self-regulation. We can’t continue defending self-regulation and fake outrage when what we already knew becomes public.

Some will shift all the blame to Facebook, but we are at least as responsible as they are. EU decision-makers let this happen with self-regulation and soft policy.

re are notable differences in scop

inauthentic behaviour, including the suppression of millions of fake accounts and the implementation of safeguards against malicious automated activities.

more granular information is needed to better assess malicious behaviour specifically targeting the EU and the progress achieved by the platforms to counter such behaviour.”

several tools have been developed to help consumers evaluate the reliability of information sources, and to open up access to platform data for researchers.

platforms have not demonstrated much progress in developing and implementing trustworthiness indicators in collaboration with the news ecosystem”, and “some consumer empowerment tools are still not available in most EU Member States.”