Data as a company secret - how to protect them?

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Nowadays, we handle a lot of data at work and in everyday life, and even a single piece of data can be of great importance, especially for entrepreneurs who must carefully distinguish between confidential and public data. Check what a company secret is and what are the obligations related to it!

What is a trade secret?

The secret of the enterprise is regulated in Art. 11 of the Act on Combating Unfair Competition. The wording of the definition defines quite broadly what a trade secret is, but it can be briefly indicated that it is any information that has an economic value and is not readily available or commonly known by people who usually deal with this type of information.

Economic value - this is important information for the company regarding, for example, the operation of the company, finances, etc.

It is also important for the entrepreneur to be willing to keep the information confidential. That is, if the entrepreneur decides that a specific information is to be treated as confidential, it will become a company secret and the employee authorized to know it has no right to disseminate it and share it with a third party. The Court of Appeal in Krakow also emphasized that a trade secret may also include experience and knowledge, which is used and needed to produce a specific product, device and is an essential element for the creation of documentation and a technological and production process. (I ACa 241/13).

What data are included in the trade secret?

Knowing what a trade secret is, you need to determine what data counts as confidential, as not all of them will benefit from protection. First, confidential information is information that will have economic value, such as research results, advertising plans, or the organization of the enterprise. Other information that will be classified as secret is, for example, details of suppliers, customers, and information about the production process and documentation. Data deemed secret can be presented in a variety of ways. Information may be recorded in writing, in calculations, in a drawing, photo, etc. Even one data may be considered confidential if the circumstances indicate that it has been secured by the entrepreneur in the required manner and has the aforementioned economic value or is part of the set that represents such a value. On this basis, we can distinguish categories which include the data included in the trade secret. These are:

  1. Information that is difficult to access and not commonly known to a specific group of people who deal with it;

  2. Willingness to keep information confidential;

  3. Knowledge and experience as necessary elements of the technological and production process.

Example 1.

The entrepreneur has created an application for fitness exercises and as part of it, he retrieves the information provided by his customers and required by the application. It uses them to develop, improve and improve its application. The collected data will be a company secret, because they have economic value for him - they help him to improve the application he has created, thanks to which he can attract more customers.

However, not all data will be confidential. They will be characterized by a lack of economic value, which means that they will not contribute to the development of the enterprise in any way.Such data are, for example, specific parameters of the device, e.g. a vacuum cleaner, which determine the wattage, capacity, energy efficiency or size.

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Actions to protect data

Another and equally important factor in the issue of data as a trade secret is their appropriate protection by the entrepreneur himself. According to Art. 11 of the Act on Combating Unfair Competition, the entrepreneur must take due care to prevent confidential information from reaching unauthorized persons.

In this matter, the Court of Appeal in Katowice stated that the entrepreneur is required to make a catalog and precisely distinguish information into confidential and freely available information, and to inform the persons to whom the information is provided that they are confidential (V ACa 471/17). In addition, technical and legal measures should be developed to protect data:

  1. legal actions, e.g. internal acts (resolutions, regulations), statements, regulations, confidentiality clauses, non-competition agreements;

  2. technical activities, e.g. granting authorizations, creating access codes, securing information carriers in digital form, appropriate rooms for storing documentation.

Summary

On this basis, it should be pointed out that, in the first place, it is the entrepreneur's responsibility to define the catalog of confidential information so that the data is fully protected. As indicated in the Act, the entrepreneur should do it with due diligence. Otherwise, the data may be disseminated, which will ultimately have a negative effect on the entrepreneur. In the event of disclosure of secret information, the economic value of such data will be automatically disturbed. Such a situation may lead to the deprivation of such information of protection.