Among the main tasks that a business organization must undertake in order to become more competitive and be able to differentiate itself from its competitors and maintain its position in the market is to protect know-how and confidential business information, i.e. trade secrets, against possible unlawful acquisition, use and disclosure by third parties.
It is to protect know-how and confidential business information, i.e. trade secrets, against possible unlawful acquisition, use and disclosure by third parties.In this regard at the European Union level there is the Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure which establishes rules on protection against the unlawful acquisition, use and disclosure of trade secrets.
It should be noted that the legal text recognizes that innovative companies are increasingly exposed to unfair practices aimed at the misappropriation of trade secrets, such as theft, unauthorized copying, economic espionage or breach of confidentiality requirements.
The Directive defines what is a trade secret, meaning information that meets all of the following requirements:
- Be secret in the sense that it is not, as a whole or in the precise configuration and assembly of its components, generally known to, or readily accessible by, persons within the circles in which the type of information in question is normally used
- Have a commercial value because of its secret nature
- Have been the subject of reasonable measures, in the circumstances of the case, to keep it secret, taken by the person legitimately exercising control over it.
In other words, information that does not meet each and every one of the requirements indicated above will not be considered a trade secret, with the consequences deriving in this respect from not being classified as such, and also bearing in mind that the Directive neither intends nor seeks to limit the use by workers of the experience and skills honestly acquired during the normal course of their professional career.
Furthermore, for the use or disclosure of a trade secret, without the consent of its holder, to be considered unlawful, one of the following conditions must be met:
- That the trade secret has been unlawfully obtained.
- That a confidentiality agreement or any other obligation not to disclose the trade secret has been breached.
- That there has been a breach of a contractual or other obligation to limit the use of the trade secret.
From Lawyou we consider that this concern by our legislator for the protection of trade secrets was necessary and should take into account the reality of the business sector in our environment, in addition to seeking to specify aspects and definitions that were not entirely clear, with the aim of gaining legal certainty and to achieve the simplification of the advisory work provided by the professionals who are part of Lawyou.
The aforementioned Directive has entered into force, and must be transposed by the Member States, i.e. they will adopt the laws, regulations and administrative provisions necessary to comply with it, no later than June 9, 2018.