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The law of corporate secrets

Publicado el 8/3/2019

On March 13, 2019 comes into force this important law, aimed at protecting innovation, know-how and confidentiality.

* Law 1/2019, of February 20, 2019, of Business Secrets (LSE) for the transposition into Spanish law of Directive (EU) 2016/943, of June 8, 2016, relating to the protection of technical knowledge and Undisclosed business information (trade secrets) against unlawful acquisition, use and disclosure.

It supposes a very awaited advance, because before the matter was regulated through different dispersed norms in the Penal Code or the Law of Unfair Competition and, mainly, with contractual clauses.

The "business secret" can be technological, scientific, industrial, commercial, organizational or financial. (For example, unpatented inventions, algorithms, mathematical and chemical formulas, manufacturing procedures, lists of customers and suppliers, information on prices and costs, business plans or marketing strategies).

That information, to be protected, must meet three conditions:

  • Not be generally known or easily accessible within the circles in which it would normally be used;
  • Must have business value precisely because it is secret.
  • The owner must take reasonable measures to keep it secret.


The company, then, must identify which are, in particular, its "business secrets" and, (fundamental to obtain legal protection properly) the concrete reasonable measures that have been taken in the organization to keep it a secret.

It is not, then, simple: Normally, the intervention of specialists will be necessary to carry out this concretion and protocolization of measures. It is not enough, in order to obtain in an effective way the protection that this Law offers, with the introduction of confidentiality clauses in contracts, be they labor or with third parties. It will be necessary to establish action protocols and internal rules that set the level of access to information, treatment and integrity measures, policies for the use of devices, and access to the most relevant data.

It will also be especially important to train and inform the company's personnel regarding what is considered in the same sensitive information, since the main leaks of information are caused by employees, former employees or collaborators.

To obtain more specific information and / or adapted to the needs of your company, you can consult the Dispatch on the matter. So, by way of example:

  • What actions are obtaining, using or unlawfully disclosing business secrets and who is considered responsible for them;
  • The exceptions: When the use of sensitive information is lawful;
  • The possibilities of transmitting the business secret to another company. As well as co-ownership situations, business secrecy licenses ...
  • Legal actions and precautionary measures to protect business secrecy, its proof and its period of exercise. In your case, the request for compensation.

 

Mª Ángeles Arqued

PAJARES & ASOCIADOS ABOGADOS

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