On 8th June 2016, the European Parliament and the Council issued a Directive which intends to harmonise the definition of trade secrets, along with guidelines on how they will be protected. It also defines forms of legal and illegal acquisition, use and disclosure of trade secrets, and proposes remedies for those affected by misappropriation. EU Member States were bound to bring this Directive into force by 9th June 2018. Malta implemented the Directive through the Trade Secrets Act, 2018.
A trade secret is valuable information held and acquired by a company through lawful means in order to help it gain a competitive advantage within its market. Such information can be of technical or commercial nature. The Directive intends to help out companies, both small and large, but poses a greater focus on smaller companies as they do not have the necessary resources to manage a large portfolio of intellectual property rights, such as patents.
At its core, the Directive aims to standardise the national laws in EU countries against the unlawful acquisition, disclosure and use of trade secrets. It also proposes effective and uncostly civil means through which victims can seek redress. Such as:
- Stopping unlawful use and further disclosure;
- Removal of market goods that have been manufactured using illegally acquired trade secrets;
- Right to compensation for damages caused by the unlawful use or disclosure of misappropriated trade secrets.
Parties to legal proceedings relating to misappropriation are also not permitted to use or disclose any trade secret or alleged trade secret which the competent judicial authorities have identified as confidential.
With regards to journalism, the sector has not been affected. A safeguard exists for those who expose a trade secret for the purpose of revealing misconduct in the public interest. Public policy also remains unaffected, as companies are obliged to divulge information for public policy objectives, as public interest prevails over private interest. Therefore, the right to freedom of expression and information shall remain untouched.
Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.