The Trade Secrets (Enforcement, etc.) Regulations 2018 came into force on 9 June 2018, implementing the EU Trade Secrets Directive (2016/244/EU).
Much of the Directive is already incorporated into UK case law relating to the protection of confidential information, which will continue to apply. As such, the Regulations largely focus on issues of procedure, time limits and the remedies available for breach.
The Regulations do, however, include a new statutory definition of a ‘trade secret’, being information which:
- is secret in the sense that it is not…generally known among, or readily accessible to, persons within the circles that normally deal with the kind of information in question;
- has commercial value because it is secret; and
- has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.
The final element is perhaps of most interest, confirming that confidentiality is not simply about the quality of the information itself, but is demonstrated by the steps that the employer has taken to protect that information. As a minimum, this should include:
- ensuring that there is a clear, bespoke definition of what constitutes ‘confidential information’ contained within your contracts of employment (not a generic definition borrowed from another business);
- ensure that the employment contracts contain clear rules for dealing with confidential information (both during employment and on termination), especially where employees can access such information on smart phones, portable computers/tablets or through cloud storage;
- it may sound obvious, but mark confidential files and documents as ‘confidential’!
- implement systems for segregating and storing confidential information, with appropriate password restrictions and encryption; and
- limit the dissemination of confidential information to those who ‘need to know’ and keep a record of who has access.
If your employment contracts could do with a ‘confidentiality health check’, contact TJD Law on [email protected].