A sign of the secrecy of certain data is the establishment of a trade secret regime against them. There is no clear framework in Russian legislation, this concept is not 100% disclosed, being a kind of innovation. But a law on this kind of classified information exists, so you need to have an idea of ​​what is meant by this term so as not to accidentally violate the law.
Concept disclosure
Actions and measures of an organizational, legal, technical and other nature, taken by the holder and carrier of specific information in order to protect access to it, are a regime for protecting trade secrets. A detailed establishment of the regime is governed by article 10 of the Commercial Secrets Act, and the relationship between the implementation of the rules for the protection of rights and the condition of their occurrence by the owner is in article 7 of the relevant Law.
The tenth article considered above fully discloses the application of organizational measures, namely:
- highlighting a list of data whose distribution is prohibited;
- restriction of access to commercially important information by establishing a trade secret regime and the procedure for its observance;
- Lists of people who have access to classified data, as well as those who, if necessary, may be disclosed such material;
- regulation of relations on the use of data by employees, which is indicated in labor contracts and civil documents;
- marking with the stamp "commercial secret" and the indication of the owner of the information on a tangible medium.
It is believed that the regime of secrecy is established with the adoption of the above measures. But is everything so transparent and clear in the circumstances? What contradictory points should you pay attention to when signing a consent to participate in the preservation of information of a certain kind? This will be discussed later.
Practical implementation of the special regime
The holder of classified data must formally establish a trade secret regime with respect to certain information, i.e., carry out a set of technical and organizational measures aimed at protecting them. The interpretation of the law in its informational description assumes that the regime is the indicated measures in aggregate. But here it is not clearly spelled out what each of the measures taken is, there is no differentiation as such. Most of these measures can be attributed to organizational, the legal side remains unclear, given the prevailing monopoly on information.
The data protection law is not fully thought out. This can be seen by considering the mandatory presence of the heading "commercial secret" and the presence of an attribute indicating ownership of the owner. There is no written mention that the information may be in electronic form, as if leaving this storage method outside the scope of the law (given the mandatory condition for observing this stage in the establishment of a trade secret protection regime).
Rational transformation
A private secret may include any data, except for those that are prescribed by law. But the fact of the availability of modern types of information that can be stored not only on tangible media is not taken into account. Every year it is necessary to improve methods and means aimed at maintaining the confidentiality of information, vary the law depending on the possible methods of their transmission.
The prescribed measures to establish the regime put their implementation to a standstill. To date, it would be more expedient to indicate a list of measures applicable to maintain secrecy, regardless of the type of information.
Regulations for use within the enterprise
In the employment relationship between the employer and the employee there is a clause on non-disclosure of commercial data. This state of affairs is regulated by the Law on Commercial Secrets. If an employee signs a non-disclosure agreement, he must first familiarize himself with the list of documents that are prohibited, and also receive instruction on understanding the adoption of a certain kind of measures for their preservation. An unlawfully established legal regime of trade secrets regarding information obtained in the work process may be appealed in court. The contract most often spells out the period of validity of the non-disclosure regime, which persists even after the loss of position. If such a clause was missing in the contract, the dismissed employee is required to keep important data known to him for 3 years.
The law does not define monetary compensation for observing the secrecy regime, but it can all be stipulated in an additional confidentiality agreement, the retention period of which some organizations extend to ten years.
Sanctions for Violations
The punishment for disclosing important information may vary depending on the damage caused. If minor irregularities in the use of classified data are identified, disciplinary sanctions may be applied to the employee in the form of a reprimand or remark. In the case of a more serious violation of the trade secret regime, dismissal should follow, as well as civil lawsuits. It is noteworthy that under Article 238 of the Labor Code of the Russian Federation, lost profits are not subject to recovery from an employee. As a rule, such a situation entails the loss of potential opportunities, rather than material losses. In order to recover the monetary equivalent of the damage caused, a mandatory note is necessary on the importance of secret information in the financial statements of the company as part of intangible assets.
Violation of the privacy regime is governed by administrative and criminal liability. Article 13.14 of the Code of Administrative Offenses imposes fines, and for non-observance of the trade secret regime in the organization in the form of illegal receipt and transfer of information that contains tax, commercial and banking secrets, confiscation of property, huge fines and imprisonment under article 183 of the Criminal Code of the Russian Federation can be threatened.
Unfair competition
An objective manifestation of trade secrets occurs during the period of release of a product that can compete in the market, the advantage of which lies in the available useful information about it, hidden from opponents. Most states do not define the legal protection of trade secrets at the legislative level other than the United States. Regulation takes place under civil law, affecting laws on unfair competition.
In Russian law, the disclosure of secret data is described in a similar way and may also be a form of unfair confrontation in the market. There are no norms that could transform information into a secret completely and completely, but there is a provision on the regime of commercial secrets.
Normative document
The privacy statement is considered a local legal act of a certain company, the purpose of which, according to the Federal Law No. 98 of July 29, 2004, is to regulate relations based on maintaining a closed regime.
The legal and security services are responsible for the preparation and type of the document. The official leadership may not formulate this provision in writing, but its existence simplifies the prosecution of unscrupulous employees who wish to publish the data.
To ensure that the document complies with all standards, it is recommended to use the legislative framework, namely:
- Labor Code
- Federal Laws No. 152 (“On Personal Data”), 149 (“On Information and Information Technologies”) and 98 (“On Commercial Secret”).
- Decree No. 188 “On Approving the List of Confidential Information”.
In the regulation on the regime of commercial secrets in the enterprise, all used legislative acts should be listed in the “General Provisions”. After the approval of the document by the higher management, all employees falling under its validity should familiarize themselves with it under the signature.
Formation pattern
There is no specific statutory model approved for the provision. Each organization is engaged in the preparation of an individually developed document, but subject to some structural rules:
- the definition of the document and the purpose of its preparation are described in general terms;
- the list of the rights of society as a subject with classified information must be complete;
- a description of the powers of the general director of the organization, its obligations and responsibilities regarding the maintenance of the trade secret regime;
- the principle by which information should be classified as secret, as well as individuals who can determine the list of such data;
- interpretation of the term "commercial secret of the company", the procedure for entering documents under this definition;
- a list of information not subject to publicity, the definition of the organization's goals for such a privacy regime;
- duties to familiarize employees with the regime are described in the clause on protection of confidentiality of information;
- the procedure for acquaintance with classified data, a list of grounds on which a secret may be revealed;
- foreseen liability for the disclosure of sensitive data;
- final additional provisions of an individual character.
This list can be supplemented and varied, i.e., items can be combined or, conversely, expanded. The situation may apply to a narrow circle of people: a separate unit, the head of the department or leadership positions of the organization.
Appendix to the Regulation
The list of information that is characterized as confidential is recommended to be drawn up as an appendix to the main document. It is important to indicate the duration of the confidentiality of trade secrets information. Possible options are:
- before the end of the limitation period;
- the term of the business cooperation agreement and the year after its termination;
- pending completion of plans;
- the limitation period specified in the contract;
- prior to the publication of previously classified information;
- during the period of application;
- no time limit.
Liabilities
The introduction of a trade secret regime means imposing liability on an employee who is subject to a document. The list of obligations to which the employee subscribes is a mandatory addition to the employment contract. In such a tacit but written confirmation, the consent is expressed to the profile use of the data, as well as the willingness to keep them as a trade secret.
Huge amounts of money are invested in ensuring the protection of important information, a high wall is built from modern technologies, but the human factor is never excluded. The legal regime of trade secrets (protection of patents, unique developments and proposals, comparative ratios and accounting statements - any information important for a particular enterprise) is a priority, disclosure of it may lead to potential losses of a different plan. When an employee puts his signature on a document, he assumes responsibilities and realizes the seriousness of potential sanctions in case of disclosure of company secrets.
Employer Mistakes
Often people who have been granted access to important data related to the development of the organization quit on their own, leaving to find new prospects or higher wages. But bosses are more worried when this happens as a result of divulging trade secrets. Unfortunately, managers in this case often make typical mistakes, which can subsequently lead to a challenge by a former employee of a decision to dismiss in court:
- The conditions were not created for the employee to adhere to the established regime of secrecy.
- A clear set of information that is suitable for non-disclosure is not defined.
- The fact of disclosure of information is not proven.
The introduction of a trade secret regime implies the creation of the necessary conditions for the fulfillment of assigned duties. If the management admitted the fact of the employee’s unlawful dismissal, one should prepare for restoring him in his former place, as well as paying the average wage for a forced absence. You can’t be fired from the workplace because the employee did not want to sign the amendments to the regulation on non-disclosure of trade secrets. An obligation is a legal contract, changes can be made only by agreement of the parties or in court.
HR department work
The employer, inviting a new employee to a team of professionals, requires a conscious approach to regulatory documents, regardless of the unit. Personnel service plays a leading role in the process of informing each new employee. The security services, the secretariat and the IT department have similar responsibilities. The employees of the security department check a potential colleague and monitor the fulfillment of the duties of existing employees, the secretariat analyzes the submitted documents and develops individual contracts and agreements, and the human resources department brings to each new (already working citizen) the content of local regulatory acts that imply trade secrets, deals with the formation of additional agreements and annexes, and also clarifies the essence and warns of possible sanctions in case of non-compliance with the rules. The correct application of the trade secret regime, namely, an intelligible explanation of the existing obligations to maintain an important information base, allows you to protect information related to the internal processes of the company from unscrupulous competitors and accidental errors of existing employees.
No one is safe from accidentally disclosing commercially important information. Now, in the 21st century - in the era of digital technology, there are too many innovative programs and tools, thanks to which fraudsters reveal even the most secure systems of global organizations and small business firms. As a result of the public disclosure of classified information, enterprises suffer damage, loss of potential customers, customers, contractors. Such disclosure of data is a reason for blackmail, bribery, corruption. Even signed provisions and agreements on non-disclosure of trade secrets are not an absolute guarantee of protection. In order to punish the culprit who revealed any important information, it is necessary to prove the commission of this crime, otherwise such an offense will go unpunished, and the leakage of information will continue and cause loss.