Trade Secrets Protection Act

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Basic data
Title: Trade Secrets Protection Act
Short title: Trade Secret Protection Act (unofficial)
Abbreviation: GeschGehG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Business law , criminal law
References : 427-1
Issued on: April 18, 2019
( Federal Law Gazette I p. 466 )
Entry into force on: April 26, 2019
GESTA : C037
Weblink: Legal text
Please note the note on the applicable legal version.

The law on the protection of business secrets (GeschGehG) serves to protect business secrets from unauthorized acquisition, use and disclosure ( Section 1 (1) GeschGehG). The law transforms Directive (EU) 2016/943 on the protection of trade secrets against illegal acquisition, illegal use and disclosure into German law. It replaces the right to the protection of secrecy, which was previously regulated in Sections 17–19 of the Act against Unfair Competition .

Legal history

On March 21, 2019, the Bundestag adopted the draft of the GeschGehG. The Federal Council approved the draft law on April 12, 2019. On April 18, 2019, the law was enacted as Article 1 of the Law for the Implementation of Directive (EU) 2016/943 on the Protection of Business Secrets from Unlawful Acquisition, Unlawful Use and Disclosure.

Criticism of the draft law of the federal government

In the original bill of the SPD-led Federal Ministry of Justice, which first became public in April 2018, there was no exception for journalists and whistleblowers. It is expressly included in the EU directive on which the law is based. In addition, in the German version, companies should be able to determine what is a trade secret and what is not. So also documents that prove a scandal. Companies could also report journalists to the public prosecutor's office if they report on internal documents. In the course of the investigation, editorial offices could have been searched and informants could have been exposed. For the duration of the investigation, those affected were suspected of having committed a crime. Media associations and trade unions therefore warned that investigative journalists in particular might shy away from exposing grievances in the future for fear of public prosecutor investigations. Especially since they could no longer have guaranteed their informants protection. The probability that tax scandals, diesel manipulation or the like will come to light in the future will be significantly reduced, if not even nullified.

As described above, the original government draft still stipulated that companies alone should be able to decide what is and what is not a secret. According to the German Federation of Trade Unions, that would have been tantamount to a muzzle for employees and their interest groups. On the part of the DGB, an impairment of works council rights was suspected because employees could be prevented from communicating with the committees due to confidentiality obligations.

There was also criticism of the exceptions for people who disclose trade secrets. The original draft from the Ministry of Justice, also initiated by the Federal Cabinet, was based on the "intention" of doing something good for the public. The disclosing person had to act with the motive of "pointing out a grievance to the general public in order to contribute to a social change," it said. Critics had rejected this clause as a "test of opinion" that was incompatible with the directive. This "disposition test" came about through a translation error. According to the EU directive, a whistleblower acts justified if its publication objectively fulfills the purpose of serving the public interest. The German Ministry of Justice did not translate “purpose” with “purpose”, but with “intention”. Anyone who reports scandals to the press must act with the intention of serving the public interest and must justify themselves accordingly. "This is a test of attitude that is fortunately alien to modern criminal law," said the left-wing politician Niema Movassat.

However, these aspects were corrected in the legislative process (see explanations below in the section "Content of the law after a resolution by the German Bundestag").

Content of the law after a resolution by the German Bundestag

The law gives companies better protection against espionage by competitors, while journalists and their whistleblowers who bring abuses to the public are exempt from criminal liability. This is the first time that whistleblowers are legally protected from criminal prosecution.

By law, a Europe-wide uniform minimum protection applies to trade secrets which, according to the draft law, have arisen, among other things, through an independent discovery or creation. Those who can rely on the law are given effective tools to defend themselves against the unauthorized acquisition, use or disclosure of trade secrets. As a result, they can demand that any documents, electronic files or other acquired items be destroyed or surrendered, and that products manufactured on the basis of them are recalled or destroyed. You can also take legal action against infringers “to remove the impairment and, if there is a risk of repetition, also to cease and desist” and have a broad right to information and the right to compensation.

The word trade secret was previously only given concrete form through case law. The law defines the concept of trade secret for the first time and defines it uniformly throughout Europe. The prerequisite for the existence of a trade secret is, among other things, the existence of appropriate confidentiality measures by the company, such as "physical access restrictions" or "contractual security mechanisms", as well as a legitimate interest in protecting the relevant information. The official justification for the concept of legitimate interest says: “Legitimate interest can be any interest approved by the legal system. It also includes interests of an economic or non-material nature if these are approved by the legal system. Both own interests, such as the enforcement of claims or defense against impairments, as well as the pursuit of legitimate group interests, for example when the employee representative informs about an imminent staff reduction, come into consideration. [...] Here, every interest approved by the legal system can be taken into account, including those of an economic and non-material nature. For example, the right to recall and destruction can be disproportionate if the products are only considered infringing products because they are the subject of unlawful marketing . "The SPD member of the Bundestag Nina Scheer explained the purpose of the legitimate interest in a speech in the Bundestag as follows:" Where business secrets should perhaps no longer be protected, where there is a legitimate public interest in finding out what is happening in the When it comes to doing investigative journalism, for example, or when employees also bring something up while being aware of these trade secrets - this is exactly where it must be possible for this to be done, for it to be talked about, for it to be revealed . "

The law expressly excludes employee and co-determination regulations from its scope, because there were two different, related criticisms of the government draft. On the one hand, companies should be able to decide what is a secret and what is not. On the other hand, union sides also suspected that works council rights were impaired because employees could be prevented from communicating with the committees due to confidentiality obligations. According to the law passed by the Bundestag, only information that the owner has a legitimate interest in maintaining secrecy is considered a trade secret (see explanations above). In addition, it is expressly regulated that individual and collective working relationships remain unaffected by the law.

Whistleblowers or journalists are also no longer classified as infringers or assistants per se if they make trade secrets public, because "There is also a change in § 5: We have made an exception for the aforementioned reasons - just to prevent it That there is a lack of clarity on the part of journalism: Am I doing something here that I would have to justify myself for in court, or am I doing something here that definitely, from the outset, falls under an exception? ”Instead, journalists and whistleblowers fall with one relevant publication from the start under an extended exception clause. The criminal offenses in § 23 GeschGehG also contain a justification for the violation of trade secrets by aiding and abetting by representatives of the press and broadcasting who - such as B. also (in-house) lawyers - count among the so-called professional secrecy carriers. This justification is intended to minimize the deterrent effect on journalists and is modeled on Section 353b of the Criminal Code (violation of official secrecy by civil servants and other secrets carriers). This general exception is justified by the much criticized criminal liability risks for investigative journalists contained in the federal government's draft law (cf. in detail the explanations under "Criticism of the federal government's draft law" above).

The law also strengthens source protection for journalists by introducing far-reaching exceptions for so-called whistleblowers: for example, the publication of information does not fall under the concept of betrayal if the published information is intended to uncover illegal actions and professional or other misconduct. The prerequisite for this is that the disclosure is in the public interest. This is to prevent the publication from being based on an act of revenge or from being used merely as a means of pressure. Actions described by the law as “mixed motivations”, on the other hand, are considered harmless.

literature

Web links

Individual evidence

  1. ↑ beck-shop.de . Retrieved February 12, 2019.
  2. ↑ Bundestag: Bundestag votes for a bill to protect business secrets . Archived from the original on April 14, 2019. Retrieved April 6, 2019.
  3. ↑ a b c d e Business secrets and whistleblowers: Federal Council approves new rules for more protection , Computer Base. April 13, 2019. Archived from the original on April 14, 2019. Retrieved on April 14, 2019. 
  4. ↑ a b beck-current news: Federal Council approves new rules for the protection of business secrets . CHBECK publishing house. April 12, 2019. Archived from the original on April 14, 2019. Retrieved on April 14, 2019.
  5. ↑ Federal Council votes for more protection of business secrets and whistleblowers . In: Heise Online , Heise Medien GmbH & Co. KG, April 12, 2019. Archived from the original on April 14, 2019. Retrieved on April 14, 2019. 
  6. ↑ BGBl. 2019 I p. 466
  7. ↑ a b c d Freedom of the press: 1-0 for whistleblowers . In: Deutsche Welle , Deutsche Welle, April 12, 2019. Archived from the original on April 14, 2019. Retrieved on April 14, 2019. 
  8. ↑ a b c d Labor law - Bundestag passes trade secret law: Success for the unions too . German Federation of Trade Unions (DGB). March 22, 2019. Archived from the original on April 25, 2019. Retrieved on April 25, 2019.
  9. ↑ a b c d e Paul Schreiner: Trade Secrets Act on the home straight: Changes and the need for action under labor law . Expert forum labor law (#EFAR). March 25, 2019. Archived from the original on April 25, 2019. Retrieved on April 25, 2019.
  10. ↑ a b c d e Business secrets: Bundestag improves whistleblower protection . In: Heise Online , Heise Medien GmbH & Co. KG, March 22, 2019. Archived from the original on April 14, 2019. Retrieved on April 14, 2019. 
  11. ↑ BT-Drs. 19/4724 , pages 28 and 32
  12. ↑ a b Nina Scheer: Speech: Protection of business secrets during the 89th session of the German Bundestag on March 21, 2019 . Nina Scheer (Member of the German Bundestag (MdB) of the SPD parliamentary group). March 25, 2019. Archived from the original on April 25, 2019. Retrieved on April 25, 2019.