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Protection of trade secrets

Latest News Protection of trade secrets

French law has adopted a new law on the protection of trade secrets (law n° 2018-670 of 30 July 2018)

The law is intended to transpose EU directive 2016/943 of 8 June 2016 on the protection of trade secrets into domestic law.

Under the definition set out in the French provisions, any type of information could be protected by trade secrecy. A trade secret is defined by reference to three criteria: the information is not generally known or easily accessible by persons familiar with this type of information because of their sectors of activity; it has an effective or potential commercial value because of its confidential nature; the holder of the information has taken legitimate and reasonable steps to protect its secret nature. The type of information protected is broad: for example, technological knowledge, know-how, and commercial data. It seems to exclude personal data, unless such data has a commercial value. The media upon which the information is carried can be of any type whatsoever.

The fact of obtaining a business secret will be lawful if it is discovered by independent creative activity or by the reverse engineering of products.

The fact of obtaining a trade secret is unlawful when it is obtained without the consent of its lawful holder and it results from the unauthorised access, possession or copy of any document, object, material, substance or digital file which contains the secret; or from any other behaviour deemed, in the circumstances, as unfair or contrary to commercial custom and practice. The general definition is not limited to industrial espionage or unfair competition or dissemination through the media: it can occur through any access to any document, object or material.

The use or the dissemination of a trade secret is unlawful when it is undertaken without the consent of the lawful holder by a person who has obtained the secret on an unlawful basis or who has acted in breach of an obligation not to disclose it. It is also unlawful if the person knew or should have known in the circumstances that the secret had been obtained directly on or indirectly by another person in an unlawful manner.

Unlike US law, the new French law is based on civil remedies and not criminal sanctions. The remedies which can be sought include the award of damages but also can include injunctions or prohibitions on the carrying out or the continuing of the active dissemination pro prohibiting the production putting on the market of products ordering their total destruction.