Trade secrets: what are the employee’s obligations?

The employee's obligations regarding trade secrets are described in the Employment Contract Act of 3 July 1978.

These obligations were amended by the Act of 30 July 2018 regarding the protection of trade secrets, which entered into force on 24 August 2018.

The concept of 'trade secrets' has also been legally defined since that date.

Context

The purpose of the Act of 30 July 2018 is to transpose Directive 2016/943 of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

This Directive aims to harmonise the provisions on the protection of trade secrets in order to ensure the same level of protection throughout the European Union.

Before the entry into force of this Act of 30 July 2018, the Act of 3 July 1978 imposed on employees to refrain, both during and after the termination of their employment contract, from disclosing manufacturing secrets, business secrets, as well as secrets related to any personal or confidential matter of which they may have become aware in the course of their professional activity. 

However, the concepts of ‘manufacturing secrets’ and ‘business secrets’ were not defined in it.

Employee’s obligations

From now on, the Act of 3 July 1978 imposes on employees to refrain, both during and after the termination of their employment contract, from the unlawful acquisition, use or disclosure of a trade secret of which they may have become aware in the course of their professional activity, as well as to disclose secrets related to any personal or confidential matter of which they may have become aware in the course of their professional activity.

Trade secret?

The Act of 30 July 2018 also amends the Code of Economic Law by inserting a definition of the concept of ‘trade secret’.

This is any information:

• which is secret, i.e. which it is not generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question;
• which has commercial value because it is secret;
• and which has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret (contractual provisions, security mechanisms, etc.).

Examples - Chemical or manufacturing formulas, drawings and models, customer and/or supplier lists, cost prices, financial or accounting results.

Unlawful acquisition, use or disclosure of a trade secret?

The Code of Economic Law, as amended by the Act of 30 July 2018, specifies what is meant by "unlawful acquisition, use or disclosure of a trade secret":

• shall be considered unlawful, the acquisition of a trade secret without the consent of the trade secret holder, whenever carried out by:
  • unauthorised 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.

N.B.! Where a trade secret is obtained through the exercise of the right of workers (’ representatives) to information and consultation, the acquisition is not considered unlawful.

• shall be considered unlawful, the use or disclosure of a trade secret without the consent of the trade secret holder, by a person:
  • having acquired the trade secret unlawfully;
  • being in breach of a confidentiality agreement or any other duty not to disclose the trade secret;
  • or being in breach of a contractual or any other duty to limit the use of the trade secret.
• shall be considered unlawful, the acquisition, use or disclosure of a trade secret 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.

Download a model of a trade secret and confidentiality clause on LegalSmart (heading ‘Avenants au contrat de travail‘ (in French) or ‘Bijlagen bij de arbeidsovereenkomst’ (in Dutch)).

Source: Act of 30 July 2018 regarding the protection of trade secrets, Belgian Official Gazette 14 August 2018.