Trade Secrets…..Sssshhh!

A new EU directive on Trade Secrets is due to come into force by 9 June 2018, and the UK has already signalled its intention to continue to observe the Directive post-Brexit.  EU Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure aims to harmonise EU protection for trade secrets.  Under the Directive, a trade secret is generally defined as information which meets the following requirements: (a) is secret in the sense that it is not generally known or readily accessible; (b) has commercial value because it is secret; (c) it has been subject to reasonable steps to keep it secret.

Victims of trade secret misappropriation will be entitled to seek protection, including stopping the use of and further disclosure of the trade secret information, removal from the market of goods manufactured as a result of misappropriated trade secrets, and compensation for damages caused by the misappropriation.

In Ireland and the UK, remedies exist for the protection of confidential information, and therefore the introduction of the new directive is unlikely to have significant impact.  However, it is to be welcomed as significant step towards harmonisation of trade secret protection across the EU, and a signal of the increasing importance of trade secrets in the marketplace coming as it does in the wake of recent enactments in both the US and China strengthening trade secret protection.

In view of the enactment of this Directive, owners of trade secrets should ensure that “reasonable steps” are taken to ensure that appropriate information will be classified as trade secret under the new provisions.  Such steps can include having a trade secret policy in place, controlling and monitoring access to the trade secret information by legal or technical means, educating staff as to trade secrets and the controls that are in place, and having agreements or contracts in place to govern this.