Directive 2016/943
7.Directive (EU) 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition entered into force in 2016. The articles in Chapter II of the Directive set out the circumstances in which ‘trade secrets’ as defined in Chapter I may be lawfully acquired, used and disclosed and the circumstances in which they may not. Art.6 sets out the general obligation imposed on Member States, namely to ensure the availability of civil redress against the unlawful acquisition, use and disclosure of ‘trade secrets’. 8.The Directive was implemented in the UK in June 2018 by The Trade Secrets (Enforcement, etc.) Regulations 2018, to the extent that was thought necessary. This did not include any change in the law to comply with either Chapter II or art.6. The explanatory note states: “A number of the provisions of the Directive, in particular the provisions in Chapter II and Articles 6, 7 and 16, have been implemented in the United Kingdom by the principles of common law and equity relating to breach of confidence in confidential information, and by statute and court rules.” 9.It is therefore to be assumed that the substantive principles governing the protection of confidential information under English law, including that afforded by terms implied into contracts of employment and by equitable obligations of confidence, are unaffected by the Directive. However, the Directive shines an occasional light on those principles. 10.Articles 1 to 7 provide:
- Introduction
- Directive 2016/943
- Subject matter and scope Article 1 Subject matter and scope
- Article 2 Definitions
- Lawful acquisition, use and disclosure of trade secrets
- Article 4 Unlawful acquisition, use and disclosure of trade secrets
- Article 5 Exceptions
- Measures, procedures and remedies Section 1 General provisions Article 6 General obligation
- Article 7 Proportionality and abuse of process
- Implied contractual obligations of an employee
- Equitable duty of confidence
- Vicarious liability of an employer
- Clarification of the issues in dispute
- The witnesses
- Whether the information relied on by Trailfinders was confidential
- The duties owed by Mr La Gette and Mr Bishop
- Relevant acts by Mr La Gette
- Relevant acts by Mr Bishop
- Overlap data
- Whether Mr La Gette was in breach of confidence
- Whether Mr Bishop was in breach of confidence
- Alleged breach of confidence by TCL
- Agency and employment
- Conclusion