Disclosure of trade secrets
Almost every enterprise has a trade secret. This data requires protection and access control. Let's figure out what a commercial secret is, how to protect it, and what responsibility a person bears for its disclosure.
A trade secret is a list of information that is confidential within an enterprise. Possession of this information allows the firm to increase its income and differentiate itself from similar companies in the market, which poses a potential danger of a competitor stealing classified information.
The need for trade secrets is due not only to an increase in income, but also to the following factors:
- avoidance of losses;
- increasing market share;
- possession of a unique production technology;
- any other benefit.
What can be classified as a trade secret?
The company independently determines the type of information that is a trade secret. An exception will be the list of data specified by law.
Trade secret information is any statement that has a technical, production, organizational, economic, intellectual nature and plays an important role in creating the final product of the company. If the disclosure of information to unauthorized persons could lead to losses of the company, such information should be kept under the heading "commercial secret".
Purchasing data, investment allocation, new production technologies, contacts of business partners, innovative research - all this can be attributed to information that has commercial value.
Despite the full right of the company to independently determine the commercial secret statements, according to the law, there is a list of data that cannot be classified as secret:
- Information about licenses, grants, tenders.
- Data on the state of the external environment, food products, medicine and other factors that have a direct impact on citizens.
- The number of workers and information on wages. This also includes data on the timing of payment of wages, the company's debts to employees.
- Information about violation of the current legislation.
- Documents confirming entrepreneurial activity. The names of founders and members of the board of directors cannot be hidden.
- Inquiries on entering information into open registers. These documents cannot be hidden and must be submitted to the tax office as proof of income.
- Conditions of auctions, tenders, competitions, which are created by the enterprise, cannot be hidden.
- The size of the company's income and turnover.
List of employees who can act on behalf of the CEO without the need to present a power of attorney.
Methods of disclosing commercial secrets
Disclosure of commercial secrets can only take place with the consent of the owner of this data. If the information is part of the enterprise, the head of the board of directors is considered to be the owner.
Selling secrets of production to competitive companies. As a rule, employees who have the authority to work with trade secrets sell information.
Lack of protection system. If the company does not protect information that is a trade secret in any way, any employee will be able to access the information and give it out to outsiders. Leaving important documents unattended on your desktop can result in leakage. With the advancement of modern technology, an attacker will be able to photograph documentation and send it to competitors in a matter of seconds.
Incompetent employees. Such people are often unaware or do not fully understand the full implications of divulging secrets. A talkative person can tell about a trade secret to his relatives, relatives, friends. Even if disclosure does not pose a threat to the company, it is still considered illegal and is a reason for bringing an employee to disciplinary responsibility.
Data theft. Often, employees purposefully want to get a position in the company in order to have access to classified materials. Excessive employee turnover in a company is also a threat that must be addressed in order to maintain trade secrets.
Lack of staff motivation. When the company has low salaries, delays in payments, disrespectful attitude towards employees, and there are no career prospects, an employee can steal a trade secret and pass it on to a competitor. It is necessary to motivate staff to work conscientiously, both financially and with team training, and a comfortable atmosphere.
Even if an employee left the company of his own free will or was fired, he is obliged to keep the trade secrets of his previous place of work. If the head of the company suspects the resigned employee of disclosing the CT, he has every right to go to court to receive compensation.
Other less common methods of theft include hacker attacks on servers that store CTs and illegal entry into company premises.
Responsibility for disclosure of commercial secrets
The law provides for penalties for disclosing commercial secrets. Depending on the type and degree of damage, liability can be: criminal; administrative; disciplinary; civil law.
In practice, citizens of the Russian Federation are rarely held liable under the laws that relate to the disclosure of commercial secrets. However, if necessary and all the evidence is available, it is very easy to prove the guilt of an attacker.
Article 183 of the Criminal Code regulates the issue of disclosing commercial secrets, namely, it lists the options for liability that apply to the perpetrator:
- Imprisonment for up to 2 years.
- Penalties up to 500,000 rubles.
- Correctional labor for up to 2 years.
- Forced deprivation of the right to occupy leadership positions or positions that involve working with classified data.
It should be noted that criminal punishment is used extremely rarely and is relevant only in cases where the disclosure of commercial secrets has led to injuries, death of other employees of the enterprise, disruption of technical capacities, as a result of which people have suffered.
The Code of Administrative Offenses in Article 13.14 regulates liability for disclosing commercial secrets. After the employee's guilt is proven, he is fined, the amount of which depends on the position in the company and the damage caused: for individuals - up to 1,000 rubles. for persons who hold a position in the firm - up to 5,000 rubles.
This type of responsibility does not imply the establishment of an official police case. The fact of the leak is recorded by the company's security service, after which initial measures are taken to identify the attacker.
When an unscrupulous employee is identified, the head of the company has every right to apply the following types of disciplinary action to him: fine; comment; rebuke; dismissal.
The civil law does not have a special article that regulates the issue of commercial secrets. However, liability can be established in accordance with the basic rules of civil law, including full compensation for damages.
If it is proved that the employee received income from the disclosure of trade secrets, the plaintiff has the right to demand compensation for the loss and the amount that the employee himself received for disclosing classified information.
Only the head of the security service or the director of the enterprise can accuse an employee of a data breach. To submit an application to law enforcement agencies, two conditions must be met:
- The company must have a trade secret regime.
- The employee accused of stealing information had to sign an agreement with the employer to be held liable for disclosing trade secrets. In addition, it is also necessary to prove the fact of the leak, which occurred through the fault of a particular employee.
Methods of protection against disclosure of trade secrets
Enterprise information is considered confidential if it is protected from unauthorized access and disclosure. Only if a security system is in place is the leakage of commercial information classified as disclosure.
To protect valuable information from disclosure to third parties, an enterprise should develop a comprehensive data protection system against leakage. The main area of protection is access to information by unauthorized workers. At the remaining stages, control of technical leakage channels, security of premises should be taken into account. There are several practical ways to protect trade secrets.
- Secrecy stamping on documents that contain trade secrets, or on flash drives that store secret data.
Secrecy is a property of a document, which is the official evidence of its security. The stamp "trade secret" is placed in the upper right corner of the first page of the document - it can be a special seal of a company or a security service. Also, the signature of the person who assigned the degree of secrecy, the date of the creation of the neck and the period for which the secrecy extends is placed near the stamp.
All secret documents must be filed in separate folders and kept only in protected archives or dedicated premises. Each folder is recorded in the security log. If it is necessary to get access to the archive with data, the employee first contacts the archive guard. The security guard records in the log (physical or electronic) the name of the employee, the date of issue and return of the document. It is also necessary to check whether the employee has the right to work with documents of trade secrets.
A similar procedure for stamping and distributing trade secret materials with flash drives, only instead of a seal and a stamp, a special seal is attached to the device, which indicates the degree of secrecy of the data stored on the carrier.
- Creation of a list of persons who may have access to trade secrets.
The head of the security service or the director of the company must independently determine which of the employees can have access to trade secrets in order to carry out their professional duties.
- Supplementing the company's internal regulations with a document "On commercial secrets".
The provisions on trade secrets should contain detailed instructions on working with secrets, provide other employees with detailed information about who can gain access to protected information, what responsibility employees bear for attempts to steal or divulge trade secrets. At the same time, the regulation must be drafted correctly, so as not to reveal any details of commercial secrets.
In the process of hiring a new employee, a clause on liability for disclosure or theft of trade secrets should be included in the employment contract.
Such a clause should be in the employment contracts even of those employees whose duties do not include working with commercial secrets. All employees of the enterprise must be aware of the possible disciplinary and administrative punishment for their actions.
- Taking organizational measures and creating an integrated protection system to block access to trade secrets from third parties.
Organizational protection includes actions for documentary organization of keeping secrets, creating regulations for working with commercial secrets and rules for differentiating access. Technical protection includes the design, installation and further operation of technical means that prevent theft of secret information. These can be access control and accounting systems; screening and noise reduction devices; regular scanning of premises for the presence of embedded devices; protection of architectural structures (sound insulation of walls, floors, ceilings, doorways and windows).
Before creating a protection system, it is necessary to calculate all the costs of its design and implementation. It is important to note that the amount of these costs should not exceed the potential loss from the disclosure of trade secrets. Otherwise, the creation and support of the system makes no sense and is unprofitable for the enterprise.