The new EU Trade Secrets Directive 2016/943 provides EU-wide essential protection against the unlawful acquisition, use and disclosure of trade secrets. So what is in there for European ICT businesses?
Having worked with the tech businesses for several years, I can confirm EU Trade Secrets Directive 2016 is a document many of them would have asked for: information that is deemed to be trade secret is given considerable legal prominence, compared to say that of registered intellectual property.
For example, in case of trade secret infringement, the competent court of the Member State shall be authorised to order the prohibition of the production, offering, placing on the market or use of infringing goods, or the importation, export or storage of infringing goods for those purposes; the adoption of the appropriate corrective measures with regard to the infringing goods; and the destruction of all or part of any document, object, material, substance or electronic file containing or embodying the trade secret or, where appropriate, the delivery up to the applicant of all or part of those documents, objects, materials, substances or electronic files.
In the EU Trade Secrets Directive, ‘trade secret’ means information which meets all of the following requirements:
- it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
- it has commercial value because it is secret;
- it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
There are important exceptions in the EU Trade Secrets Directive from absolute protection of trade secret know-how from acquisition, use or disclosure. These include protection for workers in case of consultation and information rights, independent creation, or other exceptions granted by Member State or EU law.
So how can we expect EU Trade Secrets Directive to affect ICT-related businesses? To begin with, the following may need to be brought in line with the new rules:
- Non-Disclosure Agrements (NDAs) / Confidentiality Agreements
- Employment contracts
- Internal company policies
- Subcontractor agreements and standard terms.
Need more help with the EU Trade Secrets Directive? You can subscribe to Aphaia’s support service or contact us if you require further information.