That is, the matter of business secrets and professional secrets

In recent articles, we've discussed employee and employer obligations extensively. Today, however, we'll delve deeper into one of the most important, yet most frequently overlooked, obligations: the obligation of confidentiality. This obligation may arise from regulations regarding trade secrets, as well as professional secrecy.

Trade secret

It seems everyone is aware that certain work-related information should not be disclosed. But what exactly is a "trade secret"? It's easiest to define it as all information that constitutes knowledge held exclusively by our employer or that is not readily accessible to all entities dealing with a given type of information. This applies to all technical, technological, organizational, or other information of commercial value. Another condition is that the employer authorized to use or dispose of this information (with due diligence) has taken steps to maintain its confidentiality. At the same time, it should be added that this information may be protected not only as a whole, but also with respect to a specific combination or set of elements.

The above information can be protected both generally (e.g. by registering patents or trademarks) and individually (especially in relation to employees or former employees) – by concluding confidentiality agreements.

In addition, attention should be paid to the provisions of the Act on Unfair Competition, which indicate that the disclosure, use or acquisition of third-party information constituting a trade secret constitutes an act of unfair competition.

Confidentiality Agreement

However, moving on to the most important issues from the employee's point of view – the obligation to maintain confidentiality.

Generally, if an employer possesses trade secrets, the employee is obligated not to disclose them, even without a separate agreement. This stems from the obligations imposed by the Unfair Competition Act. However, it is possible to conclude a specific agreement that guarantees the employee's confidentiality – a confidentiality agreement (commonly known as an "NDA").

It must be characterized by:
a. specifying the information that is considered confidential by the employer,
b. indicating the sanctions for violating the agreement (most often, this will be a contractual penalty in the form of a fine expressed as a monetary amount for each violation);
c. indicating the duration of the agreement (it is best to indicate a fixed term – only then will the agreement provide effective protection; in the case of an indefinite-term contract, each party will have the option to terminate the contract by giving notice).

It is worth remembering that such an obligation may be undertaken both in the form of contractual clauses in the employment contract, but also in the form of a separate agreement.

Non-compete Agreement

When discussing agreements related to non-disclosure of information, it's worth referring to what seems to be the most well-known agreement (after the employment contract) that can bind an employee and an employer – the non-competition agreement. It's important to emphasize that it doesn't specifically address the protection of trade secrets or other confidential information. It relies solely (at its most basic level) on ensuring that the employee doesn't perform competitive work (and thus, to some extent, protects the entity's market position). Therefore, if you want to protect specific information, it's worth remembering that you need to conclude not only a non-competition agreement but also a confidentiality agreement.

Professional secrecy

There is also a second type of confidentiality that can bind employees. However, it stems not from an agreement between the employee and the employer, but from the nature of the profession performed by the individual. Examples include doctors, journalists, lawyers, and legal advisors.

This narrow scope of regulation is related to the nature of specific professions, which require a high degree of trust in the individuals performing these roles. However, it is difficult to characterize issues related to professional confidentiality, as they are regulated based on the specificities of specific professions.

This article is for informational purposes only and does not constitute legal advice.

Legal status as of October 20, 2023

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