Business secrets

Business secrecy aims to protect information with sometimes very high financial value, but which cannot be protected by intellectual property law. This includes files, notes, organizational methods, strategies, studies, business networks, recruitment plans, business agreements and ideas in general. These elements often represent years of work and investment and are therefore of crucial importance for the competitiveness and sustainability of companies.

This information, now protected by business secrecy, is part of the company's intangible assets. In French law, business secrecy was codified in the Commercial Code following Law No. 2018-670 of July 30, 2018, which transposes European Directive 2016/943 of June 8, 2016.

Article L.151-1 of the Commercial Code defines the cumulative criteria for information to be protected by business secrecy:

  • The information should not be generally known or readily available to persons familiar with that field of activity. In other words, it must not be public.
  • The information must have commercial value as a direct result of its secrecy, regardless of whether that value is actual or potential.
  • The rightful holder of the information must have taken reasonable steps to protect it and keep it secret, given the circumstances (for example, the use of passwords, safes, confidentiality agreements, restrictions on the flow of information within the company, etc.).

The holder of the information must have obtained it lawfully, whether by discovery, independent creation, observation, study, dismantling or testing of a product or object accessible to the public or in the lawful possession of the person who obtains the information. 'information.
It is possible to indicate the mention “business secret” on the document to be protected in order to facilitate its protection and to prevent the author of an attack claiming to be unaware of its secrecy.

With regard to the protection of business secrets, French law covers the unlawful acquisition, disclosure and use of secrets in general.

Illicit obtaining secrecy concerns unauthorized access, appropriation or copying of information, as well as any behavior considered unfair and contrary to commercial practices.

Unlawful use or disclosure of the secret occurs when they are carried out in violation of a specific prohibition or without the consent of the legitimate holder by a person who has obtained the secret in an illicit manner.

The production, the offer, placing on the market, import, export or storage of a product resulting from the breach of secrecy is also considered illicit.

There are exceptions to the protection of business secrecy.
The whistleblower exemption allows the disclosure of confidential information in the public interest or to reveal illegal activity.

In addition, in the event of pre-trial investigative measures, in the context of a case of unfair competition for example, business secrecy is not in itself an obstacle to the seizure of documents by the bailiff.

In the event of breach of business secrecy, the author is civilly liable.

The author of the facts may be subject to measures aimed at putting an end to the infringement, such as injunctions prohibiting, destroying or handing over the products containing the secret. The victim may also claim damages based on the economic consequences of the attack, the moral damage suffered and the profits made by the perpetrator. The judge may also order publicity measures to repair or put an end to the infringement.

In the event that the embezzlement was carried out by a natural person, but having given a company the benefit of business secrecy, the company in question could also be prosecuted.

In addition, violation of business secrecy may also constitute a criminal offense depending on the circumstances, such as theft or breach of trust, in the context of embezzlement by an employee, for example.

In summary, business secrecy is a tool for protecting the intangible assets of businesses and corporations. It can be used effectively by business owners and executives to preserve the value and competitiveness of their business.