Exceptions to the ban on disclosure, use or acquisition of trade secrets

2018.10.01

The new regulations introduce exceptions to the ban on disclosure, use or acquisition of trade secrets. These exceptions apply in four situations, i.e. when it happened: 

  1. in order to safeguard a reasonable and legally protected interest;
  2. when taking advantage of the freedom of speech; 
  3. to disclose irregularities, infringements and illegal acts in order to protect the public interest, or 
  4. when the disclosure of information that constitutes trade secret to employee representatives was made in connection with the function performed by them by virtue of the law, as long as this was necessary for the proper performance of such functions.

The most questionable exception is the possibility to disclose, use or acquire information constituting trade secret when taking advantage of the freedom of speech. The legislative rationale provided for the bill references to the provisions of the Constitution, where the freedom of speech is understood very broadly. It includes the freedom to express views and acquire and distribute information, also in media activities. This raises a question whether an employee will be able to invoke freedom of speech in order to disclose confidential information about the employer (e.g. to publicly criticize the way in which the employer’s products are made).

At this time, it is difficult to give an unequivocal answer to this question. If freedom of speech is understood too broadly, this could practically undermine trade secret protection, which means that this exception should be construed narrowly. It certainly does not encompass situations in which trade secrets would be disclosed under the pretext of the freedom of speech in order to harm the former employer. What is more, disclosing trade secret on this basis can only be allowed in the cases in which there is no other legal way to guarantee freedom of speech that does not infringe on trade secrets.