Protection of trade secrets: time for action!

By the 9th of June 2018, the EU Directive on Trade Secrets must be implemented in Dutch legislation. Until the time of implementation into Dutch law we will have cope in our country with the general rules of our Civil Code and violation of confidentiality agreements.

Business secrecy and enforcement

The Directive introduces an EU-wide definition of “trade secrets”: secret technological or commercial information that is secret, has a commercial value because it is secret and is subject to reasonable measures to maintain secrecy.

The EU Trade Secrets Directive provides the right to act against the unlawful acquisition, theft, use or disclosure of unlawfully acquired trade secrets.

It also contains legal instruments to effectively protect confidential information in court.

Exemptions

The work of journalists and disclosure by whistle-blowers (provided they act in good faith to protect the general public) are exempted under certain conditions.

Also, the Directive does not impose restrictions on the use by employees of their experience and skills they have acquired honestly during their employment.

Compensation

The new scheme allows victims of theft or abuse of trade secrets to defend their position in court and claim damages.

The Directive sets minimum requirements, so that each Member State can opt for further protection against unlawful acquisition, unlawful use or unlawful disclosure of trade secrets, while respecting the safeguards provided for in the Directive.

Practical consequences and tips

It is wise to take into account the definitions and rules of the Directive when drawing up contracts. Certainly, confidentiality agreements will not become superfluous.

In preparation for the entry into force of legislation in the EU member states, it is also advisable to start checking compliance of your contracts and your technical and organizational security measures.

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