Companies are subject to legal obligations to disclose information of public interest, for example, in the chemical and pharmaceutical sectors. The public interest prevails over private interest in such matters. The directive does not alter the current legal obligations on companies to divulge information for such public policy objectives. Are companies able to hide information on matters of public interest, such as public health, the environment or the safety of consumers? The safeguard is operative if the divulgation of the trade secret that was acquired by, or passed to the journalist, was through the use of illicit means such as the breach of law or contract.
Commercial espionage definition free#
If no unlawful conduct takes place, the relevant disclosure of the trade secret is out of scope of the Directive and therefore not affected by it.Įven when a trade secret is misappropriated, the Directive foresees a specific safeguard in order to preserve the freedom of expression and right to information (including a free press) as protected by the Charter of Fundamental Rights of the European Union. The Directive only deals with unlawful conduct by which someone acquires or discloses, without authorisation and through illicit means, information with commercial value that companies treat as confidential in order to keep a competitive advantage over their competitors. Journalists remain free to investigate and publish news on companies’ practices and business affairs, as they were before.
The directive harmonises the definition of trade secrets in accordance with existing internationally binding standards. On 8 June 2016 following a proposal from the European Commission, the European Parliament and the Council adopted a directive that aims to standardise the national laws in EU countries against the unlawful acquisition, disclosure and use of trade secrets.
However, while large companies have the resources to manage a large portfolio of intellectual property rights, such as patents, smaller companies often cannot afford to do this - therefore their reliance on trade secrets is greater. Information, knowledge, inventiveness and creativity are the raw materials of the new economy, and trade secrets are important for companies both large or small, in all economic sectors. Information protected through a trade secret can be strategic for decades (for example, a recipe or a chemical compound), or ephemeral (for example, the results of a marketing study, the name, price and launch date of a new product, or the price offered in a bidding procedure). Such knowledge can include new manufacturing processes, improved recipes, or information on whom to buy from and whom to sell to.
Whether through laborious and costly research, decades of experience, or a sudden burst of creativity, companies constantly develop information which can help them to perform better, faster or at lower cost.
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