On 13 March 2019, just over a year ago, the Business Secrets Act (LSE) came into force. This new Act adapted Spanish law to the European Directive 2016/943 on the protection of undisclosed technical knowledge and business information against unlawful obtaining, use and disclosure.
At this point, business people all over the country began to get answers to those questions that until recently were very difficult to answer.
What is a business secret?
The LSE, in its article 1 defines business secret as any technological, scientific, industrial, commercial, organizational or financial information or knowledge that:
- Is a secret, that is, not known by the persons who habitually use or work with such information or knowledge
- Is of value to the undertaking.
- Has been the subject of measures by the holder to keep it secret.
What impact does this Act have on companies and their employees?
It is clear that there is a small contradiction between keeping the secret (the employer) and the company (i.e. the employees that make up the company) being able to use it.
Most violations are committed by employees, former employees or direct collaborators (suppliers, consultants, etc.) with the company who may have access to information or knowledge.
What conduct is considered legal or illegal?
Obtaining, using and disclosing business secrets will be considered lawful when:
- It is by discovery or creation independent of the holder of the business secret.
- By observing, studying, testing or dismantling an object or product without any obligation of confidentiality.
- Through the exercise of employees’ rights to be informed.
- By any other action considered to be fair business practice.
Information obtained in the exercise of freedom of information or in the investigation of illegal activities shall also be considered as lawful.
However, it shall be considered as unlawful conduct when:
- Secrecy (or information or source inferring it) is obtained without the consent of the owner.
- The use (use it in some way) or disclosure (to the public or third parties) without the consent of the owner.
- The production, offering or marketing of infringing goods or their import, export or storage
Can a business secret be the subject of a property right?
Yes, this is so. Another novelty of the LSE is that it includes a section that defines business secrets as subject to property rights, and the owner may transfer, assign or even license them.
How can I protect a business secret?
The really important question for most people is: how do I protect a business secret?
The reality is that those companies that want to protect their secrets must take a series of technical and legal measures that we describe below:
- Identify the secrets we want to protect
- Decide who will coordinate the protection of the secrets.
- Decide where to classify the secrets.
- Define the conditions of accessibility to the secrets.
- Use of legal measures to protect secrets.
This last point would consist of drafting confidentiality agreements with those partners, workers or collaborators of the company who may have access to business secrets. This would make it possible to define what, with whom and how the information we decide to share with those customers, employees, collaborators or investors related to our company may be used.
Some examples of business secrets
- New York Times best seller list
- Big Mac Special Sauce Recipe
- Kentuky Fried Chicken Recipe
- Recipe of Coca-Cola
Ley 1/2019, de 20 de Febrero, de Secretos Empresariales.
Directiva de la UE 2016/943 del Parlamento europeo y del Consejo, de 8 de junio de 2016, relativa a la protección de los conocimientos técnicos y la información empresarial no divulgados (secretos comerciales) contra su obtención, utilización y revelaciones ilícitas.
Aquellos terceros que hayan obtenido o comercializado con los secretos empresariales estarán exentos siempre y cuando no tuvieran conocimiento del secreto y lo hubieran obtenido de buena fe.
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