The new Spanish Law on Business Secrets is here (I)

Finally the 1 / 2019, February 20, from Business Secrets. This legislative novelty opens a new possibility of protection for companies, which will see how some of their most valuable information will have legal recognition equivalent to that of other industrial property rights. Therefore, we are going to analyze some of the most relevant new features that this regulation incorporates.

First of all, this Law define what a business secret is, and it does so in a very broad way, allowing all types of information to be available. The object of protection includes any information or knowledge that meets three requirements:

1. Be secret.
2. Have business value.
3. Has been subject to reasonable measures to maintain its secrecy.

Thus, practically any knowledge that a company generates can be a business secret.

Secondly, they indicate What activities are considered legal and illegal, taking into account the activities that the management of business secrets entails: obtaining, use and disclosure. Thus, such acts may be legal or illegal depending on the circumstances described by the Law.

On the one hand, the obtaining, and therefore the use and disclosure will be legal if is a consequence of:

1. The independent discovery.
2. Reverse engineering.
3. The exercise of labor rights.
4. Any other action in accordance with fair business practices.

But, on the other hand, these same actions (obtaining, using and disclosing business secrets) can also be considered illicit. This occurs in the event that the obtaining of the business secret has occurred without the authorization of the owner, that is, in the case of illegal obtaining.

This way of obtaining information affects other behaviors, since the use and disclosure will also be illegal if the obtaining has been illegal. Also, if knowledge has been obtained lawfully, but
is used or disclosed in breach of any contractual or similar obligation, these acts will be considered breaches of trade secrets.

One of the important novelties of this new Law is the liability for infringement, since the objective liability of third parties who do not commit the illicit activities explained above is fixed. Thus, anyone who obtains, reveals or uses the trade secret knowing or should know that he or she obtains it from someone who uses or reveals it unlawfully will be responsible for an infringement. This model of objective liability also extends to those who produce, offer or market merchandise that incorporates a secret previously used illicitly.

But the new Law does not stop there, as it also establishes a liability regime that we could describe as “ultra objective”, for which even the third party in good faith is considered responsible, although said responsibility is more attenuated than in the previous cases.

Therefore, the Law requires great diligence from companies when transmitting or receiving business secrets, and they must be careful not to deal with information obtained irregularly to avoid sanctions.

You can access the second and last installment here