New protection of business secrets - entrepreneurs must act.

Companies invest in know-how, from which there are important competitive advantages. Valuable information is the currency of the knowledge-based company. Maintaining confidentiality of business secrets is therefore a management instrument for competitiveness and research innovations. The loss of secrets can result in serious consequences, in particular, and generally can no longer be reversed. However, the existing protection of business and trade secrets is incomplete: Actions were often shunned, because it could be associated with the risky complete disclosure of confidential information.

The new version of the UWG
When the amendment to the “Law against Unfair Competition” (Gesetz gegen den unlauteren Wettbewerb, UWG) (UWG Amendment 2018) took effect in January 2019, the EU Regulation 2016/943 on the uniform protection of confidential know-how and secret business information was implemented in Austrian law and the special provisions of the protection of business secrets were issued.

For the first time, the term business secret is now defined: This is secret technological and/or commercial information of economic value that is subject to appropriate confidentiality measures. The term is broadly drafted and can include e.g. list of customers, sample collections, offers, purchasing conditions or formulas.

New and essential is: So that confidential information becomes a business secret in the first place, the person entitled to dispose over it must be active! Organisational measures also come into question as well as technical measures, employment law and other contractual arrangements. All that must be documented accordingly and kept up to date to enjoy protection!

A number of claims are available against the misuse of business secrets. In addition to orders to cease and desist and eliminate infringement, claims for damages and the surrender of enrichment are also possible. Temporary injunctions are possible to secure interventions in business secrets.

In addition, the previous legal deficiency in court proceedings is reduced. The court must preserve business secrets by means of suitable measures and orders. For example, an expert can be consulted, the inspection of the file restricted or the public excluded. Thus, the respondent to the proceedings is no longer automatically aware of the secret.

Curse and blessing are, as often, close to one another. Distinctive steps to protect business secrets are unspecific, depending on the obligations of action of the person authorised to have secret information in the individual case. Without active non-disclosure measures (keyword: protection concept), there is no protectable business secret even with valuable secret information. Efficient compliance measures are therefore a “must”.

Author: Alexander Wöß