Confidentiality clause - what can it refer to?


The purpose of the confidentiality clause is to protect sensitive information about the company when concluding contracts with other entities. What should the confidentiality clause look like and what can it apply to?

Enterprise secret

The regulations concerning company secrets were included in the Act of April 16, 1993 on Combating Unfair Competition (Journal of Laws 1993, No. 47, item 211, as amended).

The above act in Art. 3 says that breaching a trade secret is an act of unfair competition. And he develops this idea in Art. 11, which deals with the fact that an act of unfair competition is the disclosure, use or acquisition of someone else's information constituting a business secret.

The above provision also applies to persons who were employed in a given company, i.e. former employees - they have a statutory obligation to keep the company secret for 3 years after the termination of the employment relationship (unless the contracts provide otherwise).

A business secret is undisclosed technical, technological, organizational information of a company or other information of economic value, about which the entrepreneur has taken the necessary steps to maintain its confidentiality.

As can be seen from the above - information protected with secrecy includes only the information that has been disclosed subject to secrecy. Therefore, if the entrepreneur has not taken appropriate measures to maintain its confidentiality in relation to a given information (even if it belonged to the above-mentioned ones), such information no longer constitutes business secret information.

Breach of a trade secret

If the parties (e.g. employer - employee, company - contractor) have signed a confidentiality statement, they must comply with this statement under the penalty of penalty. The penalties for breaching the confidentiality clause are: fine, restriction or imprisonment for up to two years. In addition, the victim of breach of secrecy has the right to demand:

  • refraining from unlawful actions,

  • removing the effects of prohibited activities,

  • submitting a single or multiple declaration with appropriate content and in an appropriate form,

  • compensation for the damage caused,

  • issuing unjustified benefits,

  • adjudication of an appropriate amount of money for a specific social purpose related to supporting Polish culture or protection of national heritage - if the act of unfair competition was culpable.

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What should a confidentiality agreement look like?

The confidentiality agreement should, first of all, comply with the law - it cannot contain the so-called abusive clauses, i.e. contractual provisions prohibited by law.

When it comes to the form of a confidentiality agreement, there is no set pattern - such an agreement will be different for an employee and different for a contractor. However, there are some elements that should be included in the confidentiality statement:

  • specify in the contract exactly what information constitutes a trade secret,

  • define the purpose to which the secret information may be disclosed and to whom (e.g. lawyers, attorneys, etc.),

  • determine responsibility for breach of the confidentiality clause,

  • specify the duration of confidentiality.

When does the confidentiality clause end?

As a rule, the confidentiality clause has no expiry date - it lasts as long as the given information constitutes a business secret. However, information ceases to be a secret when:

  • has been disclosed to the public,

  • lost its economic value,

  • the company no longer takes measures to protect the information.