The Swedish Supreme Court recently decided upon the applicability of Article 3 of the Act on the Protection of Trade Secrets. Article 3 sets out the penal sanctions for trade espionage.

In the case before the Supreme Court a former employee had taken with him a copy of the employer's customer database on a computer disk when his employment ended. The customer database was considered without question to be a trade secret. The court had to decide whether the employee's actions constituted trade espionage.

The court stated that trade espionage can be committed by an employee as well as by a third person with no connection to the company. Article 3 deals with situations where an employee accesses information that clearly lies outside the scope of his work tasks. In addition, to commit trade espionage it is pre-supposed that the employee takes some kind of action to obtain the information that is kept secret from him.

In this case the employee had accessed the trade secrets when performing his work tasks and this access had been authorized. Therefore the court found that the employee had not committed trade espionage, since he had not "accessed a trade secret without authorization" by copying the information and taking it with him. Thus the penal sanctions for trade espionage did not apply. However, the court stated that if an employee uses or divulges trade secrets that he is authorized to access, he can be required to pay damages to the employer. The question of damages was not considered in this case.

For further information on this topic please contact Agne Lindberg at Advokatfirman Delphi & Co by telephone (+46 8 677 54 00) or by fax (+46 8 20 18 84) or by e-mail ([email protected]).

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