Online Training (In German): The new Trade Secrets Act in Germany (GeschGehG)

Secrets are invaluable goods for companies. Nutella could never sell so many glasses if everyone knew the secret recipe. In fact, Coca-Cola protects its secret recipe to such an extent that only two people in the world know its composition. But even small secrets can have a high value for companies.

lawpilots trains employees online on these topics. The goal is to qualify employees to deal with trade secrets in a sustainable manner so that they do not commit any violations. Various interaction possibilities and animated dialogue games consolidate what has been learned in a fun way.

The German language online training course about the Trade Secrets Act (GeschGehG) answers questions with which all employees are confronted on a daily basis:

• What is a trade secret?
• How do I recognize trade secrets and what protective measures are there?
• How do I keep trade secrets and when is disclosure prohibited?
• How do I exchange trade secrets securely?

For an initial introduction to the subject of the new Trade Secrets Act and for a systematic understanding of the law, we present the most important points of the law.

What is a Trade Secret?

According to the new definition of the Trade Secrets Act, a trade secret is information that is neither generally known nor readily accessible. It also has an economic value (§2a GeschGehG), such as the Coca-Cola recipe, and is subject to appropriate secrecy measures by the lawful owner (§2b GeschGehG). Finally, there must also be a legitimate interest in secrecy (§2c GeschGehG).

What's New?

Journalists and their whistleblowers, who make existing grievances in companies public, are exempted from criminal liability. Thus, whistleblowers are also legally protected against prosecution for the first time. Edward Snowden, for example, would now receive better protection under the new law.

Recently, so-called “reverse engineering”, i.e. the decryption of trade secrets from products by observing, investigating, dismantling or testing a product (§3 GeschGehG), has also been expressly permitted.

Also new is the legal concretisation of the individual claims, as well as special procedural regulations that ensure secrecy in court proceedings.

A particularly important innovation is also the legal definition of the term trade secret, decisive is the existence of appropriate secrecy measures by the owner of the secret.

What’s the Law?

The Trade Secrets Act protects trade secrets from theft, use and disclosure (§4 Section 1 GeschGehG). With it, companies are better protected against espionage by competitors than before. For the first time, the new Trade Secrets Act legally defines the concept of trade secrets and guarantees a Europe-wide uniform minimum protection for trade secrets. It provides companies with tools to defend themselves against the theft, use or disclosure of trade secrets. For example, they can obtain the surrender or destruction of documents, assert claims against infringers for the removal of the impairment or omission and demand information and damages from them (Section 2 GeschGehG).

What to Do?

In order to benefit from the protection provided by the Trade Secrets Act, companies must meet a few requirements. They must be able to demonstrate that they have protected their secrets by objective, externally recognizable, appropriate secrecy measures. However, what is an appropriate measure depends on the individual case.

Organisational measures, such as employee training and technical measures for IT security, can be considered. Here, however, it should be noted that general confidentiality obligations are no longer sufficient in many cases in view of the new legal situation. Instead, individual agreements may also be necessary, depending on how the respective employee deals with business secrets. Contractual obligations to protect business secrets are also recommended when dealing with business partners. Furthermore, companies must be aware of which information should be kept secret at all. This can include customer data, balance sheets, supplier data, calculations, prototypes, plans, recipes, etc.