The Belgian Act on the Protection of Trade Secrets (the "Act"), implementing the EU Directive 2016/943, was published in the Belgian Official Gazette on August 14, 2018. The new Act will enter into force on August 24, 2018. It will not apply to pending proceedings.
The Act introduces an enhanced (civil) level of protection of trade secrets against theft and illicit use. The key elements of the Act are set out below.
A. Definition of trade secrets
A trade secret is (i) secret information which has (ii) commercial value because it is secret and (iii) has been the object of reasonable measures to protect its secrecy. This definition is the same as the one used in the Directive and is potentially very broad: a trade secret can include a recipe, a chemical compound, a new manufacturing processes, a customer list, a marketing study and much more.
B. Unlawful acquisition, use and disclosure of trade secrets
Acquisition of a trade secret is unlawful when it results from unauthorised access to materials or other conduct which is contrary to “honest commercial practices”, or was acquired from a third party when the acquirer knew – or should have known - that the third party was acting unlawfully.
Use or disclosure of a trade secret is unlawful where it is in breach of any contractual or other duty (e.g. a confidentiality agreement) or where the trade secret was acquired unlawfully. Exploitation of infringing goods is unlawful if the person carrying out those activities knew - or should have known - that the trade secret was used unlawfully.
Lawful acts include independent discovery or reverse engineering and any other practice which is in accordance with “honest commercial practices”.
Trade secret owners who are the victims of a breach of their rights have a full array of provisional measures, corrective measures, expedited cease and desist orders, and proceedings on the merits at their disposal. Just to name a few: recall of the infringing goods from the market, cessation of unlawful use or disclosure, prohibition of the production or offering of infringing goods, destruction of infringing goods, and compensation for any prejudice: Whilst a trade secret is not an exclusive intellectual property right in se, these civil remedies available to enforce a trade secret are very similar to the ones available to the owners of an IP right, with the exception of the seizure-description which is excluded.
D. The preservation of the confidentiality of trade secrets during and after legal proceedings
Importantly, the Act provides that the court can order measures for the preservation of certain confidential information during and after the legal proceedings. The court may submit the parties, their lawyers, court staff, witnesses, experts and any other person participating in the legal proceedings to a duty of confidentiality, under the penalty of fines in addition to potential damages.
The court may also restrict access (i) to any document containing (alleged) trade secrets (ii) or to hearings where (alleged) trade secrets may be disclosed, to a limited number of persons, or produce a non-confidential version of any judicial decision, in which the passages containing trade secrets have been removed or redacted.
Practical steps to protect trade secrets include (i) identify trade secrets (strategic information considered confidential) within your company, (ii) create and maintain a trade secrets inventory, (iii) implement protective contractual, physical and technical organizational measures, and (iv) create a misappropriation action plan.