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North Carolina Journal of Law & Technology

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.

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