The new French law on the protection of business secrets has been approved. While providing protection for companies, it also provides for exceptions to business secrecy, particularly for staff representatives and whistleblowers.
The legal protection concerns any information that meets the following 3 criteria:
- Information that cannot be, in itself or in the exact configuration and assembly of its elements, generally known or easily accessible for those familiar with this type of information because of their sector of activity;
- Information that has commercial value, effective or potential, because of its secrecy;
- Is subject to reasonable protection by its rightful holder, in the circumstances, to preserve its secrecy.
Scope of protection and exceptions
A business secret is protected against its unlawful collection, use and disclosure.
However, some exceptions are set out by the law. The first of these concerns the staff representatives.
Business secrecy cannot be opposed in the case of a dispute on the subject:
- when the obtaining of business secrecy occurred in the exercise of the right to information and consultation of employees or their representatives;
- when the disclosure of the confidentiality of cases by employees to their representatives took place in the context of the legitimate exercise of their functions, insofar as this disclosure was necessary for this exercise.
The other notable exception is whistleblowers. Business secrecy is thus not opposable in the event of litigation on the subject when "its obtaining, use or disclosure has occurred to reveal, in order to protect the general interest and in good faith, unlawful activity or misconduct, including the exercise of the whistleblower right.