In trade secret cases, the defendant usually defends two positions: 1) the disputed information cannot be regarded as a trade secret and 2) this information was obtained legally.
Both of these defenses have already been discussed above. If the plaintiff manages to defeat these arguments, he can expect both that the use of his trade secret will be prohibited, and that he will be paid material compensation. The TRIPS Agreement describes in sufficient detail the rules relating to civil and administrative enforcement measures. intellectual property. Some of these rules may be specifically applied in relation to the observance of trade secrets. Yes, Art. 44 of the Agreement provides "the power of the court to oblige the guilty party to renounce the violation." For the owner of a trade secret, it is especially important to obtain a court decision, according to which the defendant not only prohibits the use of a trade secret that does not belong to him, but also requires him to destroy all carriers of information received about it and its further non-distribution. In Art. 45(1) of this Agreement refers to damages by those who knew or should have known that they were committing a certain offence:
“The court may order the infringer to pay the right holder adequate compensation for the damage he has suffered in connection with the violation of his intellectual property right and caused to him by this infringer, who knew or should have known that he was committing an offense.”
Article 45(2) contains provisions that develop the protection of the right holder:
“The court can also oblige the infringer to pay the right holder the expenses incurred by him, including the lawyer's fees. In appropriate cases, the member states of the Agreement may authorize the court to order the recovery of illegally obtained income and compensation for lost profits even in cases where the offender acted without knowing that he was infringing the rights of the right holder.
The provision for attorney's fees varies from country to country. In England, in all civil cases, including cases of trade secrets, these costs are always assigned to the losing party. But there are also limitations. In a number of countries, attorney fees in trade secret cases are only reimbursed in cases of intentional misconduct. Other types of compensation, indicated in the second sentence of the cited article, are practically never used in cases of violation of trade secrets.
A particular difficulty in trade secret litigation is the fact that, in itself, consideration of the leakage of information can lead to the disclosure of its secrecy. The TRIPS Agreement provides for the protection of this type of information:
“In the process, means must be used to identify and protect confidential information within the limits of the constitutional norms” (Article 42).
“In cases where one party, in support of its claims, puts forward evidence, both general and specific, which are under the control of the opposing party, the court may oblige that party to provide him with the specified evidence, subject to conditions ensuring the protection of confidential information. » (art. 43(1).
The protection of the right to a trade secret is carried out practically in only one, namely, in a jurisdictional form, the essence of which is to seek help from the competent state bodies. Self-defense of violated rights, provided that it does not turn into arbitrariness, in the area under consideration comes down to the possibility of self-neutralization and incapacitation technical means, illegally introduced by third parties in order to obtain information, as well as taking prompt measures to disinform persons who illegally received classified information in order to prevent possible damage from their disclosure. In self-defence, some sanctions may also be applied in relation to counterparties under economic contracts and employees who violate the obligation to not disclose confidential information.
The main form of protecting the right to a trade secret is a jurisdictional procedure, which, in turn, is divided into judicial and administrative procedures. Meaning general rule has a judicial procedure for protection, which involves filing a claim for the protection of violated rights in court. Since the issue of trade secrets is directly related to entrepreneurial activity, these claims are mainly within the jurisdiction of arbitration courts. In cases where the defendant is an employee who divulged a trade secret contrary to an employment contract (contract), the case is considered in a court of general jurisdiction.
The administrative procedure for protecting the right to a trade secret, which is also called special, is applied only in cases specified in the law (clause 2, article 11 of the Civil Code). The possibility of filing a complaint about a violation of the right to a trade secret with the federal antimonopoly body follows from the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Commodity Markets". In accordance with Art. 22-29 of this Law, the federal antimonopoly body, having considered the circumstances of the case, has the right to issue a binding order to eliminate the violation and apply the sanctions established by law to the violator. However, taking into account the fact that at present any decision taken in an administrative procedure can be appealed to the court, and the cases themselves related to the violation of the right to trade secrets are often not as obvious as, for example, most cases of violations of the antimonopoly legislation, this procedure of protection is applied very rarely.
Protection of the right to a trade secret is carried out using certain methods. Article 139 of the Civil Code contains a direct reference to only one of them, namely compensation for damages, but allows for the possibility of using other methods of protection provided for by the Civil Code of the Russian Federation and other legal acts. A general, although not exhaustive, list of these methods is contained in Art. 12 GK. Of course, not all of them can be used in the area under consideration, since the nature of the violated right and the nature of the violation itself set the natural boundaries of the possible choice.
So, a claim for recognition of the right to a trade secret can be used when this right is disputed by someone. For example, Art. 8 of the Patent Law of the Russian Federation provides the employer with the opportunity to keep secret the technical or artistic and design solution of the problem created by the employee in connection with the performance of official duties or a specific task received from the employer, unless otherwise provided by the contract between them. If, despite the acceptance by the employer of this particular option of protecting his rights within the period established by law, the employee attempts to apply for a patent or is otherwise ready to disclose the essence of the result achieved, the employer can protect his interests with a claim for recognition of the right to trade secret. The same lawsuit is used when an entrepreneur, without legal grounds, is required by someone to disclose information constituting a trade secret.
Such a method of protecting the right to a trade secret as the restoration of the situation that existed before the violation and the suppression of actions that violate the right or create a threat of its violation can be used in cases where the offense committed has not yet led to the complete termination of the violated right itself and there is an actual the possibility of eliminating the consequences of the violation. For example, an individual who obtained information through illegal means may be required to return technical documentation or destruction of material media, he may be prohibited from using this information in his own sphere, as well as distributing information to third parties, etc.
The owner of confidential information may demand the invalidation of an act of a state body or local self-government body, by which he is ordered to disclose the secrecy of information, if he believes that the actions of the relevant body go beyond the competence of the latter, are not caused by necessity, or otherwise contradict the law.
If a violation of the right to a commercial secret causes losses to its owner, the person who obtained the information illegally must compensate for these losses. The same obligation is imposed on employees who divulged a trade secret contrary to an employment contract, including a counterparty, and on counterparties who did so contrary to a civil law contract. Losses must be compensated in full, i.e. compensation is subject to both real damage to the property of the victim, and lost profits. The obligation to substantiate the amount of losses, however, rests with the victim himself, which greatly complicates the application of this method of protecting the right to a trade secret in practice. The task of the owner of the violated right in this regard is somewhat facilitated when the violator extracts income through the use of illegally obtained information. In this case, the victim has the right to demand compensation, along with other losses, for lost profits in an amount not less than such income (clause 2, article 15 of the Civil Code).
In addition to these and some other civil legal protections, the law provides for criminal sanctions for unlawful infringement of trade secrets. Among the criminal offenses in the field of economic activity(Chapter 22 of the Criminal Code of the Russian Federation), the new Criminal Code of the Russian Federation provides for two, albeit close, but relatively independent elements of a crime related to the illegal receipt and illegal disclosure of information constituting a commercial or banking secret. According to Part 1 of Art. 183 of the Criminal Code of the Russian Federation, it is a criminal offense to collect information constituting a commercial or banking secret by stealing documents, bribery or threats, as well as in any other illegal way for the purpose of disclosing or illegally using this information. This crime is one of the formal compositions, that is, it is considered completed at the time of the above actions, regardless of the result. The subject of a crime can be any person who has reached the age of 16, who acted with direct intent and pursued the goal of disclosing or illegally using information constituting commercial or banking secrets. As a measure of punishment, a fine in the amount of 100 to 200 minimum dimensions pay or in the amount wages or other income of the convicted person for a period of one to two months or imprisonment for up to two years.
It is also a crime to illegally disclose or use information constituting a commercial or banking secret, without the consent of their owner, committed out of selfish or other personal interest and causing large damage (part 2 of article 183 of the Criminal Code of the Russian Federation). This crime can be committed by persons to whom this information became known thanks to their official position or performing official duties. Such persons include, in particular, employees of the owner of commercial or banking secrets, officials and other employees of state and other organizations who, in violation of their official duties, disclosed or illegally used such information, etc. However, it is considered a crime to only such actions of the above-named persons that are committed with direct intent for the purpose of personal enrichment or other personal interest. If information constituting a commercial or banking secret is disclosed through negligence, this is not a criminal offense and may result in the application of civil law sanctions and disciplinary measures to such persons only. In addition, unlike the illegal collection of information constituting a commercial or banking secret, the act in question is considered a material offense. In other words, one can speak of a completed crime only when, as a result of the disclosure or illegal use of information, the owner has suffered major damage.
This crime shall be punishable by a fine in the amount of 200 to 500 times the minimum wage, or in the amount of the wage or salary, or any other income of the convicted person for a period of 2 to 5 months, or by deprivation of liberty for a term of up to three years, with a fine in the amount of up to 50 times the minimum wage, or the amount of wages or other income of the convicted person for a period of up to one month or without it.
Bringing specific perpetrators of a crime to criminal liability does not preclude the filing by the victims of civil law claims for compensation for the harm caused. In particular, in cases where information constituting a commercial or banking secret is disclosed or illegally used by employees of state or other organizations, the corresponding claims for damages can be addressed either directly to these organizations (Article 402 of the Civil Code) or to the state (Article 402 of the Civil Code). 16 GK).
Since the consideration in courts of civil disputes and criminal cases related to violation of the rights to trade secrets contains the risk of disclosure of confidential information, the right holder should take appropriate measures to prevent such consequences. Preservation of confidentiality in this respect is ensured by holding a closed trial. Unfortunately, only one of the procedural laws currently in force in Russia provides the possibility of a closed trial of cases in connection with the need to preserve trade secrets. According to Art. 9 of the Arbitration Procedure Code of the Russian Federation, the court may, at the request of a person participating in the case, referring to the need to preserve commercial or other secrets, adopt a ruling on the trial of the case in a closed session. Due to the fact that disputes about the right to trade secrets mainly arise between entrepreneurs and, therefore, are resolved by arbitration courts, for most disputes this issue is resolved by law. If the relevant dispute (criminal case) is considered by a court of general jurisdiction, the problem of maintaining confidentiality exists. The Civil Procedure Code of the RSFSR (Article 9) and the Code of Criminal Procedure of the RSFSR (Article 18) contain an exhaustive list of grounds on which a case may be heard in closed session. Since the need to preserve commercial secrets is not among such grounds, the court does not have the right to close the proceedings from outsiders. There is no doubt that the Russian procedural legislation needs to be improved in this part.
For the disclosure of a trade secret is a rather complicated procedure that requires not only the establishment of the fact of violation by the employee, but also certain nuances in the preparation of documentation. At the same time, one often has to deal with litigation in such matters, and in some cases, the employer is denied the dismissal of an employee precisely because of the incorrect interpretation of trade secrets and all the features associated with it.
Regulatory regulation
In order to understand what to do with an employee who disclosed classified information, one should decide on the terms and laws.
A trade secret is information of any type (from production to organizational), as well as information about the methods of carrying out activities of a professional nature, which has potential or actual commercial value due to its unknown to third parties, if it is out of free access on the basis of legislation. At the same time, a trade secret regime is introduced in relation to the owner of such information. This term is regulated by Article 3 of the Law "On Trade Secrets". Disclosure, respectively, is the transfer of such information to third parties.
Non-disclosure obligation upon dismissal (sample)
Dismissal procedure for disclosure of trade secrets
If a trade secret has been disclosed, then the employee is fired for this violation. In such a case, the company must:
- Prepare a disclosure statement in a timely manner;
- Record the refusal to give written explanations on the part of the employee or receive them all in the same writing in relation to the committed misconduct (should respond within 2 days);
- Apply appropriate disciplinary action.
At the same time, it is important to correctly draw up all the necessary papers and carry out the procedure in accordance with the law.
Order
If the employer has decided to dismiss the offending employee, then he prepares an appropriate order for his dismissal. At the same time, the document should contain references to the article of the Labor Code of the Russian Federation corresponding to the case.
The dismissed employee must familiarize himself with the order against signature. An act is also drawn up.
What you need
In order to apply this punishment to a delinquent employee, it is necessary first of all to record the very fact of disclosure. The method of such recording will depend on what information the employee disclosed and how. It can be:
- Fixing the fact of using the Internet by an employee. A memo is drawn up in the name of the head of the department or.
- Written testimony from other employees, competitors, or partners is also evidence of a violation.
- Confirmation in the form of video and photographic materials.
Step-by-step instructions for conducting
To carry out the whole process, it is necessary to go through the following stages with documentation of each:
- Registration of the fact of disclosure of secrets.
- Establishment of a commission to conduct the case, if necessary.
- Collecting evidence about the disclosure of secrets by the employee, conducting an internal investigation.
- Checking all the conditions that are necessary for the dismissal.
- A request is made to the employee to obtain appropriate explanations (with a description of the circumstances in which the violation was recorded, and a link to the relevant document in the non-disclosure agreement for this information).
- If a response is received from the employee, then it is evaluated by a specially created commission, which evaluates the employee's misconduct, compares it with the consequences that have occurred for the employer.
- If these are not received within 2 days, a refusal to familiarize with the documents with the signatures of several witnesses is issued.
- The decision taken by the commission is fixed in the protocol with recommendations and conclusions regarding the future fate of the worker.
- Execution of the dismissal order and the inclusion of a copy of it in the employee's personal file.
- An entry is made in the labor if it is decided to carry out a dismissal.
- A personal card is issued upon termination of the employment contract.
- Accounts are being taken with the employee.
- A personal file is handed over to the archive, a notice is sent to the military enlistment office about the employee who was fired, if he is subject to military registration.
This is, in fact, the whole process that must be completed. But it is important to do everything right. It is not uncommon for a court to refuse to dismiss an employee due to a misinterpretation of trade secrets.
Enrollment in labor
After all the documentation has been completed and the dismissal process is almost over, it is carried out. At the same time, the wording must contain the grounds for dismissal (in this case disclosure of trade secrets). A link to the relevant article is also required.
Trade secret agreement upon dismissal
Even after dismissal, the employee will continue to have information relating to the trade secret of the enterprise. And despite the fact that a person no longer works in an organization, but divulged forbidden information by passing it on to third parties, it is possible to punish him accordingly with the recovery of material damage. The amount will be determined by the court.
How to dispute
You can try to challenge the dismissal decision in court if:
- The agreement on non-disclosure of trade secrets was drawn up incorrectly or has discrepancies with other documents;
- If the fact of data transfer to a third party has not been established (recording the same information on a flash drive is not a fact of disclosure);
- If, and the employee was on vacation or on sick leave.
Pregnant women, minors and disabled persons are also not subject to dismissal.
This video will talk about the consequences of disclosing a legally protected secret:
Responsibility for Disclosure
If we talk about responsibility for divulging secrets, then this can be:
- Disciplinary action - from reprimand to dismissal;
- Payments for property damage.
Pecuniary damage is understood as the losses incurred by the plaintiff associated with the disclosure of trade secrets. The potential benefit in this case is not taken into account. But if the employee quit and got a job in another company, where he disclosed the necessary information, then he can be recovered material damage including potential lost profits. But specific amounts are set by the court.
Arbitrage practice
If we talk about judicial practice, then two cases on this topic will be indicative:
- During the internal check established in the company that the employee had access to information protected by the trade secret regime. She violated this regime and repeatedly used the office computer to rewrite secret data on a flash card. It was also established that this information was transferred to third parties, due to which competitors received data on the planned scope of work and their cost from the customer. The court concluded that the employer had the right to dismiss the employee in accordance with the law.
- Dismissal is also provided for inaction. For example, an employee left the workplace, but at some point did not block a computer containing data related to a trade secret. Accordingly, an unknown person made a copy and transfer of information from him to persons. On the basis of such a violation, the employee was fired for inaction, that is, a violation of the confidentiality regime. In this case, the court refused to satisfy the employee's claim for reinstatement.
On the other hand, simple copying to a USB flash drive without establishing the fact of transferring information to a third party is not a violation of the regime, and the court may, in this case, satisfy the request to reinstate the employee to his position with payment of compensation in the amount of full wages in accordance with the terms of absence from work.
We recently represented the interests of our principal in an arbitration court in a lawsuit against a customer IT services. As the case was drawing to a close, the customer's representative, trying to turn the situation around, put forward an unexpected argument. He stated that the plaintiff was not entitled to present the contract and other documents to the court in support of his position, since this information is a trade secret and is protected not only by contract, but also by law.
In his opinion, filing documents with the court is the disclosure of trade secrets. At the same time, he demanded that the plaintiff stop the violation and announced his intention to apply to law enforcement agencies with a statement to initiate a criminal case under Article 183 of the Criminal Code of the Russian Federation (this article provides for punishment for disclosure of information constituting a trade secret).
The argument is rather unusual, considering great amount cases considered in arbitration courts under agreements in which confidentiality provisions are present in one form or another.
Who is right in the trade secret dispute?
In accordance with the Federal Law "On Commercial Secrets", information constituting a trade secret is understood as any information that is of commercial value due to its unknown to third parties. Disclosure of a trade secret is an action or inaction when information becomes known to third parties without the consent of the owner or contrary to the concluded agreement.
In other words, information is a trade secret because it is of interest to third parties because of its commercial value. Obviously, information cannot be of such value to the court, and, moreover, the very concept of “commercial value” does not correlate with the activities of the courts, whose function is to administer justice. Consequently, the courts cannot be considered as those third parties, the transfer of information to which is the disclosure of trade secrets. This also applies to other government bodies.
In addition, by virtue of the Arbitration Procedure Code of the Russian Federation, the persons participating in the case are required to prove the circumstances to which they refer, i.e. the presentation of evidence is not only a right, but also an obligation of the parties in accordance with the law.
Thus, the submission by the parties of documents in court of Arbitration within the framework of a litigation, it is not a disclosure of a trade secret, regardless of what the parties agreed upon when concluding the contract.
What will happen to privacy?
Any person participating in the case has the right to apply to the court for consideration of the case in a closed court session, and the court may satisfy this petition if it considers that commercial secrets will be violated in an open court session.
It is important to note here that the provision by the plaintiff or the defendant of confidential information to the arbitration court does not mean that an unlimited number of persons get access to this information. On the contrary, judges and employees of the court apparatus are responsible for the disclosure and illegal use of information constituting a trade secret.
The Federal Law "On Commercial Secrets" provides for civil liability government agencies which include the courts. If executive allows the disclosure of information or illegally uses it, the owner of the information has the right to demand compensation from the authority for damages at the expense of the budget. In this case, the official himself will bear criminal liability in accordance with the above-mentioned Article 183 of the Criminal Code of the Russian Federation.
In a case considered by the Judicial Collegium for Civil Cases of the Kursk regional court in May 2012 (appellate ruling No. 33-932-2012), the issue of the legality of dismissal of an employee for disclosure of trade secrets was decided.
The peculiarity of the situation was that the employee had previously transferred the database of subscribers to OJSC Rostelecom in the form of a register individual entrepreneur on electronic media, since an agency agreement was concluded between CenterTelecom OJSC and an individual entrepreneur, which was valid until April 2011. Later, the IP entered into a subagency agreement with another company, but the employee continued to transfer information about subscribers to him.
The essence of the dispute
The citizen worked as a software engineer at the Kurchatov RUS branch of Electrosvyaz OJSC Kursk region(currently the Kursk branch of OJSC Rostelecom). In December 2012, by order of the director of the Kursk branch of OJSC Rostelecom, he was dismissed from his position for disclosing a commercial secret protected by law, which became known to the employee in connection with the execution of job duties(part 1 of article 81 of the Labor Code of the Russian Federation).
Considering the dismissal on this basis as illegal, the citizen applied to the court, indicating that, in accordance with his official duties, he created a register file, which was transferred to the representative of the Rapida payment system, which accepts payment in favor of Rostelecom OJSC. According to the employee, the measure of disciplinary sanction chosen against him does not correspond to the severity of the disciplinary offense, since he has not been brought to disciplinary responsibility before. The citizen asked the court to reinstate him at work in his previous position, to recover from the employer in his favor wages for the time of forced absenteeism and compensation for non-pecuniary damage.
Position of the Leninsky District Court of Kursk
The court noted that according to Art. 53 of the Law "On Communications" No. 126-FZ of July 7, 2003, information about subscribers and the communication services provided to them, which became known to telecom operators by virtue of the execution of an agreement on the provision of communication services, is information of limited access and is subject to protection in accordance with the legislation of the Russian Federation .
Providing third parties with information about subscribers-citizens can be carried out only with the consent in writing of subscribers, with the exception of cases provided for by federal laws.
As required federal law dated July 29, 2004 No. 98-FZ “On Commercial Secrets”, by the order of CenterTelecom OJSC in August 2009, the “Regulation on the Protection of Information Constituting a Commercial Secret in CenterTelecom OJSC” was approved, according to which information about subscribers is a commercial secret. The employee was familiarized with this order against signature.
In October 2007, the employee signed an agreement on non-disclosure of trade secrets, according to which he undertook not to disclose information of limited distribution (confidential), including the trade secret of the organization, which would become known to him by the nature of his official activity, and undertook to keep personal data communication network subscribers.
In connection with the reorganization of the company in April 2011, an agreement was concluded with the employee to change the terms of the employment contract, according to clause 2.3.4 of which he undertook not to use, without the permission of the employer, any property and information belonging to the employer for his own purposes or for the purpose of extracting profit themselves.
However, he provided the individual entrepreneur on electronic media with a database of OJSC Rostelecom subscribers in the form of a register containing the following information: the subscriber's personal account, subscriber number, amount of debt, i.e. information about payments of the subscriber.
The fact of unauthorized use of the database was revealed by the head of the security department of OJSC Rostelecom during the inspection of the premises rented by IP.
In connection with the commission of a disciplinary offense by an employee, he was dismissed from his position in December 2011 for disclosing a secret protected by law, which became known to the employee in connection with the performance of his labor duties.
The court concluded that the information disclosed by the employee, which became known to him as a result of the performance of his labor duties, refers to information constituting a trade secret. He was not entitled to transfer data about the subscribers of OJSC Rostelecom in the form of a register to other persons, except LLC NK, but transferred this information to the IP without the consent and permission of the employer, thereby disclosing information constituting a trade secret, and the employer had legal grounds for termination of his employment contract.
The court noted that the procedure and procedure for the dismissal of an employee by the employer were observed. At the same time, the court concluded that the employer, when imposing a disciplinary sanction on an employee, did not take into account the severity of the disciplinary offense and that the plaintiff had not previously been brought to disciplinary liability.
Leninsky District Court of Kursk in February 2012 partially satisfied the claims. The court reinstates a former employee as a software engineer of the first category of the user department (Management information technologies) Kursk branch of Rostelecom.
Position of the Judicial Collegium for Civil Cases of the Kursk Regional Court
The Judicial Collegium did not agree with the conclusions of the court of first instance, noting that the absence of an employee during the period of work disciplinary action does not exclude the right of the employer to dismiss on the grounds set forth in the order disputed by the plaintiff.
The panel of judges came to the conclusion that, taking into account the specifics of the enterprise, the nature of the information that the employee disclosed, his dismissal corresponds to the severity of the disciplinary offense committed by him.
The employee's arguments that as a result of his actions the employer did not suffer material damage cannot be the basis for reinstating him at work, taking into account the arguments of the employer's representative in the court of appeal about the possible damage business reputation JSC.
Under the above circumstances, there were no legal grounds for the reinstatement of the employee at work and the recovery of wages from the employer in his favor for the time of forced absenteeism and compensation for non-pecuniary damage, the court decision in this part is not legal and is subject to cancellation.
The Judicial Board canceled the decision of the Leninsky District Court of Kursk. The Judicial Board dismissed the claim former employee to OJSC Rostelecom on reinstatement, recovery of wages for the time of forced absenteeism and monetary compensation moral damage.
Responsibility for the disclosure of trade secrets is provided for by criminal and administrative codes RF. The measure of punishment depends on the circumstances of the offense committed, its purpose, as well as on the amount of damages caused to the injured party.
The concept of a trade secret
The definition of a trade secret includes certain information about the activities of the enterprise. Entity may include the following information protected from disclosure:
- Information about production technology, know-how, innovative production samples etc.
- Information about economic condition enterprise (profit and loss), except for the situation when this information is subject to disclosure in accordance with applicable law.
- Data about the company's counterparties: suppliers, buyers, partners.
- Other information that the company wants to hide from disclosure.
At the same time, Article 5 of the Federal Law No. 98-FZ of April 20, 2004 provides an exhaustive list of information about the activities of a commercial structure that cannot be considered a trade secret.
Information is considered a trade secret only if the company has taken steps to protect it. They may be as follows:
- Application on paper and electronic documents corresponding note.
- Functioning at the enterprise of an internal document on the procedure for protection commercial information.
Appointment of responsible persons. - Introducing the obligation not to disclose commercial secrets to the employment contracts of employees and dismissal for disclosure.
Here are some examples of disclosures:
- Dissemination of information about the enterprise, which is secret among relatives and acquaintances, without the pursuit of the goal of obtaining benefits.
- Access to information of third parties who do not have the right to do so. Liability arises both with intentional admission and negligence.
- Sale of commercial information to persons who use it for their own selfish purposes.
- Responsibility for the disclosure of trade secrets may also be borne by employees after their dismissal, if they have been warned about this in writing.
Corpus delicti
In the Criminal Code of the Russian Federation, punishment for the disclosure of trade secrets is provided for in Article 183. The object of the crime is public relations in the area commercial activities. The subject of the crime is information that is a trade secret.
The corpus delicti is formal, that is, it is considered completed, regardless of whether it was possible to disseminate information or only an attempt took place.
The subject of the crime is a capable person who at the time of the commission of the crime was at least sixteen years old. The secret is known to him in connection with official duties and he was warned in writing about liability for unlawful disclosure, or he obtained it by criminal means.
How to prove trade secret disclosure
In order for the guilty employee to bear criminal or administrative responsibility, the following two conditions must be met:
- The company has taken measures to protect commercial information from disclosure.
- The employer has proven that a particular employee, for one purpose or another, disseminated information that is considered a trade secret.
To hold an employee accountable, the following steps must be taken:
- Establishment by the employer of the fact of disclosure of commercial secret information on the basis of evidence.
- Conducting an investigation within the enterprise by a specially created commission.
- Sending a written request to an employee who is suspected of disclosure with a request to provide an explanation.
- In the absence of written explanations from the employee, drawing up an appropriate act.
- Adoption by the commission of a decision on bringing the employee to administrative or criminal liability.
Criminal law is based on the principle of the presumption of innocence. Based on this, the employer must provide the court with strong evidence of the fact that the employee disclosed trade secrets.
Direct confirmation of disclosure may be the following facts:
- Detection of documents containing commercial secrets from an employee in circumstances not related to labor process, including outside the enterprise.
- Video materials obtained with the help of CCTV cameras, where the fact of disclosure was recorded.
- Fixing the sending of secret data via e-mail or copying it to external storage media, if prohibited internal documents organizations.
- Witness testimony of the transfer of classified commercial information to third parties.
Criminal liability for disclosure of trade secrets
Collection of information that falls under commercial secrets by illegal seizure of documents, bribery, threats or any other illegal means is punishable by:
- a fine in the amount of 500,000 rubles or the total income of the perpetrator for 12 months;
- correctional labor for up to 12 months;
- forced labor for up to 2 years;
- imprisonment for a term not exceeding 2 years.
Insider information is the data of an organization (company) that is not subject to distribution and is known only to a certain circle of people. Federal Law No. 224 protects this information. It stipulates that for violation of storage rules,
obtaining and disclosing insider information possible administrative and criminal liability
Illegal disclosure of commercial information that became known to the perpetrator in the workplace threatens:
- a fine in the amount of 1,000,000 rubles or the total income of the perpetrator for two years with a ban on engaging in certain labor activity for 3 years;
- correctional labor for up to 2 years;
- forced labor for a period of up to 3 years;
- imprisonment for a term not exceeding 3 years.
If such actions of the winemaker caused damage to the enterprise on a large scale or they were committed for selfish purposes, then the punishment will be more severe, namely:
- a fine in the amount of 1,500,000 rubles or the total income of the perpetrator for three years with a ban on engaging in certain types of activities for the same period;
- forced labor for up to 5 years;
- imprisonment for a term not exceeding 5 years.
In the event that the disclosure of commercial information by an employee or employee caused serious consequences, he may be sentenced by the court to:
- forced labor up to 5 years;
- imprisonment up to 7 years.
Administrative responsibility
The perpetrator may incur administrative liability for the disclosure of trade secrets, if his actions did not have signs of a criminal offense. The punishment, according to Article 13.14 of the Code of Administrative Offenses of the Russian Federation, will be as follows:
- an administrative fine in the amount of 500 to 1000 rubles - for citizens;
- an administrative fine in the amount of 4,000 to 5,000 rubles - for officials.
A lawyer who has committed such an offense is liable as an official.
Arbitrage practice
Example 1
At the enterprise LLC "Electron" the mode of protection of commercial information functioned. The database of buyers with contact information fell into the category of secret information. Citizen Petrov entered into a verbal deal with the director of a competing enterprise to transfer the base to in electronic format. For this, Petrov should have received cash reward in the amount of 50,000 rubles. The fact of copying the database to external media was recorded by the system administrator of Electron LLC. The fact of the transfer of commercial information to the director of a competing enterprise was confirmed by witness testimony. Petrov was prosecuted and sentenced to three years of forced labor.
Example 2
Petrov worked at Novinka LLC, which was engaged in the sale of used cars. Citizen Petrova turned to him with a request to find out if her friend bought a car. Petrov provided her with information without any material benefit for himself, since he did not consider this information to be secret. At the same time, in employment contract Petrov was warned about the responsibility for disclosing commercial information, and the company took measures to protect such information. For his act, Petrov was fired for disclosing commercial information and incurred administrative liability in the form of a fine of 1,000 rubles.
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