Commercial secret. How to impose liability?

Aug, 28 2018

Employees are generally responsible for disclosing commercial secrets in the company. The employee disclosed a commercial secret should be dismissed. Nevertheless, that is often complicated to prove the lawfulness of dismissal at court.

The employers often do not comply with requirements to the protection of the confidential information: companies do not adopt regulations on commercial confidentiality, and the access to such information is not limited for the employees. In that case the employee disclosed such information is not guilty. Moreover, it is often hard to prove that information was disclosed by a certain employee.

But there are also cases when the employers achieve success in court.

In a case examined by The Moscow city court, the employee sent confidential information from corporate e-mail to her personal e-mail.

The employee was dismissed but challenged the dismissal in the court. Employer won the trial. He proved that according to the User Agreement the user transfers the license to use the correspondence to the mail service. This way, the mail service became a holder of confidential information.

The employer can also seek for the compensation of damages caused by the disclosure from the employee. However, under the law the employee should only compensate the actual losses. Compensation for the loss of profit can not be awarded.

Contrary to common practice, employment agreement between employer and employee can not provide a penalty for a disclosure of the confidential information.

Besides the employees, the commercial secret can also be disclosed by company's counterparty. Bringing a counterparty to justice is possible if only the non-disclosure agreement was signed. Such agreement can provide not only the damages compensation but also a penalty.

In a case examined by the Federal arbitration court of the West-Siberian region, the court imposed a penalty on a counterparty-defendant even though a claimant didn’t take attempts to keep the information confidential.

The decision of the courts was based on the fact that the defendant had voluntarily assumed an obligation not to disclose the confidential information, and its breach causes the liability.

We recommend the companies in order to prevent disclosure of the confidential information to comply with the following rules:

  • To determine the following information in the local legal provisions:
  • the list of confidential information;
  • number of employees having access to the confidential information;
  • employees’ obligations to keep confidential information;
  • To familiarize employees with these provisions;
  • To provide in all the employment agreements the obligation not to disclose such information;
  • To create the necessary conditions for employee to perform his duty to keep confidential information, for instance:
    • to equip the workplace with safes;
    • to set passwords for access to information;
    • to fix upon documents containing commercial secret a "Commercial secret" stamp