Measures aimed at the protection of commercial secrets in Russia

The Russia law practices attach extreme importance to certain formalities for calling to account a person guilty of divulgation of a commercial secret as well as for enforcing a licensee to pay for classified information received; particularly, the “commercial secret” classification label indicating its holder is placed on material media of information, since the absence of this label will be interpreted by a court as the absence of a commercial secret per se. Moreover, a commercial secret value is to be assessed either on the basis of  market values of transactions on  transfer of similar information, or on the expenses incurred by the commercial secret possessor in the process of creating the manufacturing secret, measures to be taken to ensure secrecy should correspond to a level of the commercial secret value.

When proving guilt of divulgating a manufacturing secret in accordance with Article 1472 of the RF Civil Code, apart from termination of a respective labor contract the infringer should bear civil-law liability, particularly compensate the right holder for losses in full, including loss of profit. The RF Labor Code provides for the less severe measure of liability for divulgation of a commercial secret, according to which “An employee shall compensate the employer for direct actual damage caused to the latter. No uncollected revenues (loss of profit) shall be recovered from the employee”. Additionally, in the cases provided for in the RF Law of 29 July 2004 No. 98-FZ “On Commercial Secrecy” (as amended) a limited (recovery from the guilty person, in accordance with Article 238, Part 1, of a sum not exceeding his monthly wage) or full (recovery, in accordance with Article 243, Part 1, Paragraph 7, of a sum in the amount of the damage caused) material liability is possible..

Divulgation of a commercial secret sometimes leads to a sharp decline in the production profitability and to increasing revenues of competing companies involved into similar activities. Therefore, possessors of commercial secrets are simply obliged to take serious measures of organizational-technical and legal nature that are aimed at the protection thereof. However, seemingly most reliable measures are not capable, as the practices show, to guard the security of secrets against the human factor, except for, maybe, secrets such as complex technologies of  manufacturing soft drinks, e.g. Coca-Cola, Pepsi-Cola, or the hereditary technology of manufacturing the Venetian glass. It is based on the fact that practical problems of the commercial secret protection is much more harder to solve than legal ones. The greatest danger related to divulgation of a commercial secret originates from, first of all, employees of the company who are initiated into it as well as from unreliable contractors. Being well aware of it, the legislator has provided detailed regulation of civil and labor relations between employees and employers in the Law “On Commercial Secrecy”.

In order to prevent commercial secret leakages, it is recommended to conclude a civil contract of non-divulgation with an employee. Such a contract is desirable due to the fact that it can enable to reduce the possibility of divulging a commercial secret by the employee. But it should be taken into account that a contract of non-divulgation will not have legal force if it is not accompanied by documents forming an inseparable part thereof which make clear what is a commercial secret, how it should be kept, who and in what manner has the right to work with it. A contract of non-divulgation should necessarily include a reference to Article 81 on termination of a labor contract upon the employer’s initiative if a commercial secret is divulged as well as a reference to Article 183 of the RF Criminal Code providing for imprisonment for a term of up to 10 years where such divulgation has caused grave consequences.

As to the labor law, not only a guilty employee but also a person, who has not labor relations with the employer, receiving information on a commercial secret from the employee should be held liable before the law. In particular, according to Article 1080 of the RF Civil Code, persons who jointly inflicted injury shall be jointly liable to the injured party. Consequently, in accordance with the norms of Article 323 of the RF Civil Code, the employer shall have the right to claim damage recovery from these persons in full. Additionally, according to Article 11.3 of the Law on Commercial Secrecy, upon termination of the labor relations the employee should not only transfer to the employer material media of information that contain a commercial secret, but also should observe the regime of confidentiality in respect thereof for the whole period of validity of the commercial secret and should not use it for his/her own purposes[1].

Alongside with this, how R.V. Rechkin indicates, in spite of the disciplinary, civil-law, administrative or criminal liability, as provided for in the Russian legislation, for violation of requirements of the Federal Law “On Commercial Secrecy”, there exist objective difficulties of proving both a very fact of divulgation of a commercial secret, and  a fact of occurrence of any unfavorable consequences caused by such a deed. This is associated with the fact that in most cases divulgation of a commercial secret does not cause direct and apparent damage to its possessor. As a rule, in such cases we may speak about a loss of profit only, and it is very hard to prove it even in civil-law relations, and it may not be recovered at all from an employee in the field of labor relations  due to the direct indication to this effect in the law (Article 238 of the RF Labor Code). These circumstances make the conclusion of a detailed contract of non-divulgation of information in which respect the regime of commercial secrecy is introduced extremely important.

Apart from concluding such a contract with an employee, it is recommended to use the “method of jigsaw puzzles” in the practical work, according to which a commercial secret  is deliberately divided into fragments, and each of the fragments is under different conditions of keeping and use. Individual fragments may be officially registered as a commercial secret, some other may be passed over in silence, yet other may be protected by patents, still other may be taken from another technology, etc. As a result, leakage of one of the commercial secret fragments will not enable a potential infringer to reconstruct the whole picture with all the details. Such division may be compared to an assembly line where each worker performs the work entrusted to him/her by manufacturing a part or fixing it to an apparatus. In doing so, he/she poorly understands the structure of the whole apparatus. One can easily understand that, if a malefactor obtains one of the parts or its drawing, this will be an unpleasant fact, but will not give him/her the possibility of obtaining information on the whole apparatus. Moreover, this method of protecting a commercial secret complicates its perception for the company’s employees, which will form an additional means against a leakage of valuable information.

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