Trade Secret: Control, Protection, Responsibility
A worker on his individual work place acts according to labour contract, duty regulation, and come within the purview of internal labour regulation and current legislation. Main mission of the worker is following: to execute his employment duties.
Everything that is done for personal, leisure advantages including a usage of personal electronic formats such as: music copy, photos exchange, video downloading, personal correspondence etc – are performed out of worker’s labour functions.
It means that the worker during office hours is not executing his duties, which is a violation. Or it is possible that the worker deal with his personal business in off-duty hour (including lunch time) and he or she uses company’s equipment and services. It is quite possible only if there is employer’s agreement; it might be implied invitation as well.
The employer takes strong actions and starts the control of an information stream when there is abusive practice among the workers or when the information disclosure takes place. In that way the commercial safety is improved.
What security measures can be implemented?
Usually there are some physical limitations for usage of all or certain recording mediums (the abolishment to use flexible discs, CDs, USB-flashs). Such a rule corresponds to labour legislation and provides some limits for copying information on recording mediums.
A limitation for using Internet as an instrument of data transfer is possible with help of technical settings and workers’ e-mails monitoring.
But in case of monitoring the employer has to remember about workers’ right to privacy and personal correspondence. Before the monitoring starts the employer has to deliver by hand against receipt to each of the workers that they must use e-mails and Internet for the purpose of work and about monitoring as well to avoid privacy violation.
It is much more difficult to limit information disclosure with help of paper or any other transfer support: xeroxing, printing, making photos, audio recording, sms, mms etc. The limitation for using all of this is possible only when there is physical control and watching cameras-fitting and other supervision equipment for personnel control.
Carrying-out information which was heard or seen by the worker can be prevented by limiting of physical access to such information: to keep information in special rooms, lockers, safes and to held negotiations in special rooms etc.
You should remember that security measures are different for each company. They can be brought into use only if company has its special internal labour regulation. All measures which are implemented have to be brought to the attention of all workers.
Management, security service and company’s lawyers have to analyze carefully the legal ground of company’s security measures. Lawyers have to check if such measures don’t violate workers’ personal non-property right.
A testation is the most difficult part in case concerning trade secret theft. Following issues can be proved:
- information disclosure fact,
- information which was published is a trade secret,
- person’s identification who published such information,
- damage, which was done by publishing such an information.
Only if there are evidences for all of this facts the worker can be brought to:
- criminal responsibility,
- civil responsibility,
- material responsibility.
On one hand it should be remembered if you go to the law with a demand to check all circumstances under which the trade secret was published by a certain person it can be a good preventive measure for all workers. On the other hand huge scandal in mass media or other public discursion about the fact that a company didn’t manage to save the trade secret may damage the company’s image. And you can’t avoid it when the criminal case is under investigation.
Attorney-at-law Andrii Nechyporenko, magazine “Pratsia i Zakon” #3 (111), 2009.
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