Who does not know them, the hand-tapped secrecy agreements that are drawn out of the form drawer in companies every now and then? The secret protection directive urgently requires the modernization of such agreements and patterns. Information will therefore only be trade secrets in the future if they are secret, therefore have a commercial value and are subject to appropriate secrecy.

In particular, the last requirement increases the currently existing protection requirements. According to current case law of the Federal Court of Justice (BGH), these only exist in the non-publicity, the corporate relationship, the legitimate economic interest in secrecy and an outwardly manifested secrecy. In the future, German companies will have to take objective action to protect sensitive business data and prove it in the process. The mere will to secrecy is no longer sufficient.

It is not clear which measures are “appropriate” in the sense of the Protection of Minors Directive, whether they are technical and organizational measures, such as the establishment of access, access and access controls. However, it is expected that any protection will be waived if secret information is provided to third parties without an effective secrecy agreement. Before the old-fashioned sample is therefore given to third parties, it should be checked in particular whether the secrecy obligations and the secret information are sufficiently clearly defined. It remains to be clarified whether the regulations are in accordance with the law of the General Terms and Conditions and in fact cover all secret information of the company or contain a restriction of confidentiality to the information marked as “secret”.

Confidentiality agreements with employees are gaining in importance

A business secret requirement is that it is the subject of an “appropriate confidentiality measure”. This can only be implemented with employees in practice if an effective confidentiality agreement has been made with them in the employment contract. With regard to their effectiveness, the limits of admissibility developed by the case law of the Federal Labor Court (BAG) and the BGH apply. Only if these are complied with can an appropriate secrecy measure and also a secret within the meaning of the EU Directive be spoken of.

So-called declaratory secrecy clauses oblige the employee to maintain silence on all matters and activities that come to his knowledge in the course of the activity, even after leaving the employment relationship. However, they are too generic, only declaratory in nature and therefore do not contain any independent regulatory content. Even so-called catch-all clauses, in which the employee undertakes to keep secret all incidents or all business matters that have become known to him, are ineffective due to lack of transparency and go beyond the legally nominated secrecy obligations. You subordinate all activities and affairs to a company of secrecy clause. They are therefore too far-reaching and as a result ineffective.

Rather, what is required is that the business secrets to be kept secret or the facts are described concretely in the employment relationship. Only then is such a confidentiality clause effective. At the same time it has to be examined whether the secrecy results in the employee being restricted in his professional activity after leaving the company. In such a case, the version of this confidentiality obligation is equivalent to a non-competition clause. This is only effective against parental leave after an employee leaves the employment relationship. As a result, a balance of interests with regard to the restriction of further professional activity should be carried out and, if necessary, a contract of non-competition clause against parental leave be agreed in the employment contract.

Beware of sensitive information in the luggage of new workers

Attention should continue to be paid to trade secrets of third parties that may be borne by new employees in the company. In particular, when new colleagues come from a competitor and have a new idea in the form of a patentable invention, it should be clarified whether this is not a trade secret of the previous employer. The Protection of Secrets Directive expressly states that liability for breach of trade secrets may be considered even if the infringer knew, or should have known in the circumstances, that he had obtained, directly or indirectly, another person’s possession of the trade secret, which unlawfully used or disclosed it. Rough negligence thus suffices for liability.

New employees should therefore be trained in the lawful handling of trade secrets – especially those of the former employer – and informed of the consequences of unlawful use.

Proof of confidentiality required

In practice, there are often ineffective catch-all clauses or declaratory discretionary clauses. Their effectiveness has not been very relevant so far, and the courts have not been too busy. Most companies are also not aware that they are not sufficiently protected by such clauses.

The effectively agreed confidentiality agreement will become more important. According to the secret protection guideline, it is a prerequisite for proving a trade secret. Therefore, an effective confidentiality agreement must be agreed so that a particular circumstance becomes a trade secret.

However, the catch-all clauses are also under scrutiny. Due to the increasingly stringent demands on temporary agency work and the shortage of managers in certain industries, companies are increasingly trying to lure know-how carriers away from the competition for their company. That’s why it’s all the more important to protect your know-how and your knowledge advantage over the competition.

Therefore, companies should consider whether and, if so, what agreements have been made with regard to confidentiality and the post-contractual non-compete with the “minds”, know-how and knowledge carriers in the company. These are expected to be rewritten.