Belgian Law of 30th July 2018 on the protection of trade secrets: workers, beware!?
1.- Last August 24th, the law of 30th July on the protection of trade secrets entered into force.
This law transposes into Belgian Law the directive (EU) 2016/943 of the European parliament and of the council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition.
As a reminder, this directive had been adopted at the same time as the revelations of the type « Luxleaks ». This timing made certain people say that « Europe » sought to « muzzle » this way any potential future whistleblowers who were thinking of « sounding the tocsin » for this kind of issues … so be it.
2.- The new law is important in Labor Law because she modifies (in her last dispositions) the « good old» article 17, 3° of the Law on the contracts of employment of 3rd July 1978.
This article, used a lot in practice, hadn’t been reviewed – mistake reserved – since 1978 and states that the worker has the obligation :
«3° to abstain, both during and after the termination of the contract:
a) to divulge the secrets of the manufacture or business, as well as the secret of any personal or confidential matter of which he becomes aware in the exercise of his professional activity;
b) to engage in or cooperate with any act of unfair competition ».
This article is useful for any employer because it applies regardless of what the contract of employment contains in regard to confidentiality / (non)-competition. His old version called however for the following issues :
* What was to be understood by manufacturing or trade secrets, terms not defined by the law of 1978 ? In answer to this question, the case law generally gave the following definition : « a technical fact that, contributing to the implementation of the operations implemented in a factory to obtain a specific product, is likely to procure to the manufacturer technical advantages and to ensure him of a superiority on his competitors of a nature that’s there is for him an economical advantage that it will not be known by his competitors » ;
* Contractual terms « completing » this 17,3° strictly had already deemed void by the courts and tribunals, and this in application of article 6 of the law on contracts of employment providing that « any stipulation contrary to the provisions of this Law and its implementing decrees is void insofar as it seeks to restrict the rights of workers or to aggravate their obligations ».
3.- Since last August 24th, the new version of this 17,3° is however the following (the elements in bold are the novelties):
« the worker has the obligation:
3° to abstain, both during and after the termination of the contract:
a) to obtain, to use or to divulge unlawfully, within the meaning of Article XI.332/4 of the Code of Economic Law, a trade secret, within the meaning of Article I.17/1, 1°, of the same Code, of which he may become aware in the exercise of his professional activity as well to divulge the secret of any personal or confidential matter of which he becomes aware in the exercise of his professional activity;»
So reference is made to the notion of « trade secret » within the meaning of the Code of Economic Law, that is « information that meets all of the following requirements:
- it is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
- it has commercial value because it is secret ;
- it has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret »
Furthermore, what is now forbidden to workers is « to obtain, to use or to divulge unlawfully » such a trade secret. These prohibitions are moreover detailed as follows by the Code of Economical Law (article XI.332/4 of the CEL):
« § 1. The acquisition of a trade secret without the consent of the trade secret holder shall be considered unlawful, whenever carried out by:
- unauthorized access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the trade secret holder, containing the trade secret or from which the trade secret can be deduced;
- any other conduct which, under the circumstances, is considered contrary to honest commercial practices.
« § 2. The use or disclosure of a trade secret shall be considered unlawful whenever carried out, without the consent of the trade secret holder, by a person who is found to meet any of the following conditions::
- having acquired the trade secret unlawfully;
- being in breach of a confidentiality agreement or any other duty not to disclose the trade secret;
- being in breach of a contractual or any other duty to limit the use of the trade secret.
« § 3. The acquisition, use or disclosure of a trade secret shall also be considered unlawful whenever a person, at the time of the acquisition, use or disclosure, knew or ought, under the circumstances, to have known that the trade secret had been obtained directly or indirectly from another person who was using or disclosing the trade secret unlawfully within the meaning of paragraph 2 ».
4.- So what to remember?
First of all, we arrived from a legal provision rather short and whose application by the courts was finally “common sense”, at a “drawers” provision that does not gain readability. The desire for harmonization at European level has been there.
In substance the prohibitions dependent on the workers have been extended.
Is in fact no longer targeted the sole disclosure of the secret of manufacture / trade secret but also his acquisition which is therefore punishable without disclosure (we think in particular about files saved on a computer by a worker for example).
Furthermore, a use/disclosure is in particular considered as unlawful when carried out in breach of a confidentiality agreement or a contractual obligation. Is this a sufficient legal « door » in order to validate the very strict contractual clauses in this field who had previously been considered invalid under Article 6 of the law on the contracts of workers referred to above? We will see the case law in this regard.
However, and maybe more importantly, the notion of « trade secret » in the current legal sense seems less extensive than the one of the « secret of manufacture » adopted previously by the courts and tribunals.
In fact, in order to be protected as « trade secret» an « information » must comply with « all » three requirements laid down by the legal provisions in this field (in particular the one relating to the reasonable measures taken by the employer in order to keep this information secret).
Such a « closed » notion will certainly limit the number of « information’s » likely to be protected by the new law, whereas they could have been protected under the former provision.
Consequently, why putting higher barriers if there is less to protect? Probably the current trend …