Obligation to protect business secrets
Enterprise secret – what is it?
Pursuant to Art. 11 sec. 2 of the Act on Combating Unfair Competition indicates that a trade secret is understood as technical information, technological, organizational enterprises or other information possessing economic value that as a whole or in a particular combination and set their elements are not commonly known to people who usually deal with this type of information or are not easily accessible to such people, as long as the authorized to use or dispose of the information he has made, while maintaining due diligence, actions to keep them confidential.
According to the judgment of the National Appeal Chamber of November 8, 2017 (file reference number KIO 2252/17), „a specific information (message) may be considered a business secret, in the case of a cumulative fulfillment of the following conditions: a. The information is of a technical nature, technological, organizational or commercial and has an economic value for the enterprise (economic entity), and b. the information has not been disclosed to the public, and c. the necessary steps have been taken in relation to it in order to maintain its confidentiality ”. Therefore, these are all the data that allows a given enterprise to function. However, these data are not generally known, not considered confidential or easily accessible to other people.
Is the protection of the trade secret obligatory?
Not. However, it should be borne in mind that failure to introduce such a secret is a burden for the enterprise.
The company secret is legally protected
According to, inter alia, joke. 11 sec. 3 of the Act on Combating Unfair Competition, obtaining information constituting a business secret is an act of unfair competition. Moreover, in accordance with par. 4 above of the Act, The use or disclosure of information constituting a trade secret also constitutes an act of unfair competition. What is more, the disclosure, use or acquisition of information constituting a trade secret is an act of unfair competition also when, at the time of its disclosure, use or acquisition, the person knew or could have known with due diligence that the information was obtained directly or indirectly from the person who used it. or revealed them.
Disclosure, use or acquisition of information constituting a trade secret is not an act of unfair competition when: it was made in order to protect a legitimate interest protected by law. it took place in the exercise of the freedom of expression or in order to reveal irregularities, misconduct, act in breach of the law to protect the public interest. when the disclosure of information constituting a business secret to employee representatives in connection with the performance of their functions on on the basis of legal provisions, it was necessary for the proper performance of these functions.
How to protect a trade secret?
The most common are confidentiality agreements or appropriate clauses, including in mandate or employment contracts. It should be emphasized that such provisions should precisely define the obliged person, confidential information, the period of time for which a given person is obliged, and the case of breach of a trade secret.