The protection of business secret in the digital age

Abstract

Without prejudice to the criminal response, the protection of business secrecy is granted through Law 1/2019, which basically operates in the civil/commercial spheres. The norm, coming from another European prior, offers a legal definition of such secrets and provides guidelines to delimit the lawful from the illicit in their obtaining, use and disclosure. It also recognizes that they can be the object of property rights, lists (without too much innovation) the actions for their defense and incorporates some procedural issues.

In any case, the regulation that it incorporates reaches important employment implications, since the protection it provides cannot serve to limit the mobility of workers. In particular, it does not justify the imposition in employment contracts of restrictions not provided for by law, as well as limitations on the use of the experience and skills acquired honestly by the worker during the normal course of their professional career or information that does not meet all the requirements to be eligible for protection under the 2019 standard. Consequently, the contours of good faith, unfair competition or post-contractual exclusivity and non-concurrence agreements will be affected.

Furthermore, the protection of secrecy may not affect the autonomy of the social partners or their right to collective bargaining. In addition, its obtaining, use or disclosure is considered lawful when it is necessary for the exercise of the rights of information, consultation and participation or of other functions legally attributed to the representatives of the workers; this forecast, which, undoubtedly, will have effects on the margins of the duty of secrecy.