Newsletter

Trade secret protection in times of pandemics

Extraordinary times may call for extraordinary measures. In the current climate when a significant chunk of the work force is working remotely it is of outmost to ensure that sensitive and confidential information does not dissipate. One should also bear in mind that the current transition and flow of information from secured workplaces to remote home environments will attract the attention of parties and entities seeking to unduly capitalize on your confidential information.

Under the Swedish Trade Secrets Act you are obligated to “take reasonable action” to protect your trade secrets. Accordingly, your organization cannot remain passive in order to enjoy protection under the law. As to what constitutes “reasonable action” such an assessment is at the end of the day to be made by the courts and given the fairly new nature of the revised Swedish Trade Secrets Act (implemented July 2018) there is currently not much case law to rely on. Generally speaking, the assessment is to be made taking into account the circumstances of each particular case and with special regard to the type of information that is in suit. In light of the current circumstances where more or less your entire work force may be working remotely a higher burden to take active measures will most likely be placed on proprietors of trade secrets, especially so when factoring in the obvious increased risk for “leakage” of sensitive information that may be scattered around numerous remote locations (both physically and digitally).

The revised Swedish Trade Secrets Act now allows for action to be taken for a new form of “attack” whereby it is now also possible to secures injunctions – also on an imminent basis for attacks in the planning stages so to speak – damages etc. against person/entity seeking to make the information its own (Sw. tillägna sig). In order to successfully preempt and/or effectively injunct etc. against such attacks your organization must show that the attacker has had an intent/purpose:

In conclusion being active and taking reasonable actions to protect your valuable trade secrets is paramount. A few general tips and things to consider follow below. It is also important to note that such actions also serve as very important means for securing evidence in a timely fashion which is crucial in order to establish intent, secure preliminary injunctions and obtain adequate damages etc.

1. Review and revise guidelines and instructions relating to i.a. IT-mechanisms, copying, printing, downloading, storing and handling of sensitive and confidential information when working remotely.
2. Ensure that remote access to sensitive and confidential to the extent possible is kept to a “limited, defined and closed circle”.
3. Issue particular instructions and directives regarding return and/or destruction of any sensitive documents etc. that is outside the workplace.

We will also be holding a webinar on this very important subject together with Blendow Lexnova on 31 March, see the following link for further information and registration. (N.B. the event will be held in Swedish.)