What is business secret

In this case we are dealing with a case of Criminal Law.

It is important for us that you know that the dissemination of a business secret is a type of crime of intent regulated in Section 3 of those related to the market and consumers within Chapter XI of crimes related to intellectual and industrial property and consumers. .

To commit it, the subjective element of fraud is necessary. Which is specified with the intention and knowledge of the subject to cause damage to the competitiveness of the company.

This is a crime considered to be of concrete danger, which in order to commit it does not require causing a detrimental result, although it may also be tried commercially.

For this, it is enough that the secret information revealed is capable of causing damage to the protected legal right, which is fair competition between companies.

In our office we also carry crimes against intellectual property.

1. What is trade secret?

2. What is the crime of revealing company secrets

3. Elements that make up the crime of revealing company secrets

3.1 Target element

3.2 Active subject

3.3 Commissive medium

4. When is business secrecy breached?

5. Actions for violating business secrecy

6. What body is competent for business secrecy?

6.1 Who can report the crime of revealing company secrets? 6.2 How are actions carried out for the crime of revealing secrets?

What is business secret?

Business secrecy is defined in article 1.1 of Law 1/2019, dated February 20, 2019, called the Business Secrets Law. This secret is any knowledge or scientific, commercial, technological, industrial, financial or organizational information that meets the following requirements:

• It has to be a secret, valuable information that is not known by the people who intervene in the area of ​​said information.

• Must have business value by having a competitive advantage.

• The information or knowledge must be subject to business measures so that said information does not become known or disclosed.

• The secret must be differentiated from the so-called industrial secret, which refers to the technical knowledge of procedures, ideas or industrial products. Which have to remain hidden from the competition.

The right to business secrecy is not acquired with a valid registration, as is the case with other forms of industrial property. In this case, the right is born with the creation and maintenance of the information or knowledge in secret. This is a right of indefinite duration and is not limited to a certain territory.

What is the crime of revealing company secrets?

The regulation of the crime of dissemination and disclosure of company secrets is found in article 278 of the Penal Code. Where the sanctions are established for the assignment, dissemination or disclosure of a company secret carried out by whoever has a contractual or legal obligation to keep it confidential.

The sanction applied to those who commit this crime is a prison sentence of between two and four years, in addition to a fine of between twelve and twenty-four months. In the event that the secret is used for personal benefit, the penalty will be imposed in its lower half.

The aggravated form of the crime of revealing company secrets is when:

• The business secret is obtained, the data, facts or images are disclosed and disclosed to third parties. This according to the provisions of article 278.2 of the Penal Code.

• If the acts are committed by the persons in charge or responsible for the files, computer, electronic or telematic supports, archives or records.

• If the discovery is made through the unauthorized use of the victim’s personal data.

• When the facts affect personal data that reveal ideology, religion, beliefs, health, racial origin or sexual life.

• If the events are carried out for profit.

• When the victim is a minor or a person with a disability in need of special protection.

The crime of disclosure of company secrets is also regulated in Law 1/2019, dated February 20, 2019. The purpose of the Law on Business Secrets (LSE) is to reinforce the security and protection of confidential information or knowledge of companies, but only when the appropriate measures are implemented to do so.

Elements that make up the crime of revealing company secrets

Article 279 of the Criminal Code establishes the elements that make up the crime of revealing company secrets, they are:

target element

The objective element is company secret, that is, the information known by one or more people. Which are not interested in being known by others, especially those who are engaged in the same type of activity.

It is considered by the jurisprudence as company secrets those of the business activity. Which, being known against the will of the company, can harm its ability to compete.

The company secret is made up of the following:

1. Confidentiality because you want to keep it confidential.

2. The exclusivity that is for the company’s own consumption.

3. The economic value is the profitability or advantage generated by the secret.

4. The legality must be an activity to maintain its protection.

5. The content of the business secret, which is generally made up of commercial, technical-industrial and organizational secrets.

6. The materialization can occur in any type of support, such as paper, electronic, digital media, verbal communication in original and copy.

Active subject

The subject of the activity is represented by any person under a confidentiality agreement or legal obligation to keep confidentiality. Therefore, it includes the obligation to keep the secret that you know precisely because of your relationship with the company and the requirement of its conditions.

For this, it must be determined if the company’s workers are obliged to keep confidentiality due to: their status as workers or because it is required in a single and prior non-competition or confidentiality clause.

commissive medium

This consists of the form used to commit the crime, which may be by disclosure, assignment or dissemination of the secret.

When is business secrecy broken?

Article 3 of the Business Secrets Law that breaks the secrets of a company in the following situations:

• The unauthorized appropriation, copying or access to documents, materials, electronic files, objects, substances or any other medium. Which contain the business secret or that can be deduced from them.

• Through any other situation that in the circumstances of the case may be considered contrary to fair business practices.

• The disclosure or use of business secrets are illegal when they are made by the person who has obtained the business secret illegally. In addition, carry out the action without the consent of the owner, when the contractual obligation or the confidentiality agreement has been breached.

• The disclosure or obtaining of trade secrets is also considered illegal when the person who performs them knows that he obtained the trade secret when he committed the action.

Actions for violating business secrecy

Article 9 of the Business Secrets Law establishes the actions that can be taken against acts of violation of business secrets. The actions that can be exercised are the following:

• The declaration of infraction due to disloyalty of the act, in case the disturbance created by it continues.

• The cessation of the act or its prohibition, in case it has not yet been put into practice.

• The seizure of the infringing goods or the removal of the effects caused by the act

• Correction of misleading, false or incorrect information is required.

• Compensation for damages caused by the act when fault or intent has intervened. For which certain aspects must be considered, such as: moral damages, lost profits and hypothetical royalties.

• The action for unjust enrichment is only exercised when the act harms a protected legal position. Said position may be a right of exclusivity or any other similar economic content.

• The requirement to publish the sentence, which may contain the amount of a possible restrictive compensation and its effective fulfillment.

The term to exercise these actions prescribes after three years, counted from the moment in which they could be exercised. Also that the person who carried out the breach of the business secret was known. This is in accordance with the provisions of article 11 of this Business Secret Law.

What body is competent for business secrecy?

Article 12 of the Law on Business Secrets establishes that litigation for the disclosure of company secrets corresponds to the civil jurisdiction. These procedures will be resolved in the corresponding trial according to the rules established in article 248 and following of the Law of Civil Procedure.

The objective competence for this crime corresponds to the Commercial Courts. The plaintiff may choose the Commercial Court corresponding to the province where:

• The defendant has his address.

• The infraction is committed.

• The infraction committed originates its effects.

Who can report the crime of revealing company secrets?

Article 13 of the Business Secrets Law establishes who is entitled to take action against the violation of business secrets. Also to report the crime of revealing company secrets, these are:

• People who have an exclusive exploitation license.

• Owners of the trade secret.

• The people who are authorized to exercise the action.

How to exercise the actions for the crime of revealing company secrets?

In the first place, it is necessary to prepare to exercise the actions with the verification of facts in accordance with the provisions of article 17 of the Business Secret Law. Submit a request to ensure access to the source of evidence and the documented facts that make it possible to demonstrate the act committed.

These measures are established in article 18 of the Law of Civil Procedure. Which deals with the procedures for claiming damages due to the infringement of competition law. The adoption of precautionary measures must also be requested to protect everything related to the productivity of the company.

During the judicial procedure it is important to know that the confidentiality of the exposed business information must be protected. To this end, all persons involved in the procedure must be prohibited from using or disclosing the information that forms part of the business secret.

We hope that this information will be of help to you and that your doubts about business secrecy and all that it entails have been resolved. So if you are a victim of this crime, do not hesitate to contact us by phone or at our office in Torrevieja, at Audacia Lawyers we can help you.