Almost three years after its initial proposal, the Trade Secrets
Directive has been formally adopted by the European Council and
published in the Official Journal on 15 June (2016/943/EU). Member
states will have until 9 June 2018 to implement the Directive's
provisions. As we reported last year, the Directive aims to
harmonize the divergent body of trade secrets legislation that has
developed across EU member states by requiring certain minimum
standards to be met.
The Directive defines a trade secret as information which:
Is secret in the sense that it is not generally known among or
readily accessible to persons within the circles that normally deal
with the kind of information in question
Has commercial value because it is secret
Has been subject to reasonable steps, by the person lawfully in
control of the information, to keep it secret
It also sets out:
Rules on the lawful and unlawful acquisition, disclosure and
use of trade secrets
Rules on the preservation of trade secrets during
The measures, procedures and remedies that should be made
available to individuals in the event of a breach (to include
interim and final relief, damages, injunctions and the
precautionary seizure of infringing goods)
Sanctions for non-compliance with the Directive
Certain reporting obligations
The protection of valuable, private know-how and secret
information is expected to be welcomed by businesses throughout the
EU. Concerns have been expressed, however, that the Directive, as
drafted, could have a negative effect on free speech, the mobility
of employees or whistle-blowers. The European Council sought to
address each of these concerns in a press release dated 27 May.
Specifically, the Council emphasized that journalists' freedom
of expression will be protected since the Directive only addresses
the illicit or unauthorized acquisition of information.
Additionally, whistle-blowers will be protected when revealing
misconduct, wrongdoing or illegal activity, so long as they are
acting to protect the public interest. While some minor tweaking of
UK confidentiality law is expected, UK organizations are not likely
to see any significant practical changes, as the Directive's
provisions are predominantly reflected in existing UK
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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