On 14 August, the Act of 30 July 2018 on the protection of trade secrets was published in the Belgian State Gazette, finally providing a framework for companies to protect themselves against the abusive acquisition, use or disclosure of their trade secrets. Publishing a law during the summer may not do it justice, however, especially when the legislation in question contains important new features.
The Belgian legislation transposes the European Trade Secrets Directive and introduces two major changes.
The first, and most obvious, change is that businesses now have measures at their disposal to combat unfair practices to unlawfully acquire, use or disclose their trade secrets.
A trade secret is defined as secret information with commercial value, precisely because it is secret, that forms the object of reasonable steps on the part of its holder to keep it secret. The legislature does not require the impossible of trade secret holders but the latter should, having regard to the circumstances, take the necessary steps to protect their trade secrets and be able to prove the measures taken.
If an item of information meets these three conditions, it can benefit from the new system of protection.
It should be noted, however, that the new law is not intended to create a new exclusive intellectual property right. In brief, the law stipulates the cases in which the acquisition, use and disclosure of a trade secret are lawful and those in which they are not.
For example, unauthorised access to a document or object containing trade secrets or breach of a confidentiality agreement or any other contract is unlawful. On the other hand, it will not be possible to object to reverse engineering, independent creation or employment mobility.
If the holder of a trade secret or its licensee believes its rights have been violated, it may obtain from the court, in the context of proceedings on the merits or interlocutory proceedings, a certain number of measures. The most crucial of these are of course an injunction putting a halt to the violation as well as the recall or even destruction of the "infringing goods", a broad concept that covers goods for which the design or model, characteristics, functioning, production process or marketing significantly benefit from trade secrets acquired, used or disclosed in an unlawful manner. The injured company will also have the right to claim damages, possibly calculated on a lump-sum basis.
The second major change is that businesses will now be able to safeguard the confidentiality of their trade secrets in the course of any legal proceedings, even those not expressly brought to combat the unlawful acquisition, use or disclosure of trade secrets.
The act introduces Article 871bis into the Judicial Code. This provision allows the court to order two types of measures.
The court may, pursuant to a substantiated request by a party, characterise a trade secret as confidential and thus impose on any person (parties, witnesses, experts, lawyers and court personnel) participating in the proceedings a very strict duty of confidentiality. It may also, always further to a substantiated request, restrict access to the documents produced by a party that contain trade secrets to a limited number of persons and even restrict or prohibit their access to the hearings. While this was not provided for by the directive, the Belgian legislature wished to assuage the concerns companies sometimes have about taking legal action for fear that their trade secrets will be compromised.