GermanySchutz von Geschäftsgeheimnissen: Begriff, erlaubte und verbotene Handlungen (Trade Secret Definition, Permitted Acts and Prohibitions)
Gesetz zum Schutz von Geschäftsgeheimnissen (GeschGehG), §§ 2-5
In force since .
An unfair competition rule binding public and private bodies.
- Obligation class
- Prohibition
- Audit expectation
- none
What it requires
- Do not obtain a trade secret by unauthorized access to, appropriation of or copying of documents, objects, materials, substances or electronic files that are under the holder's lawful control and contain the secret or from which it can be derived, or by any other conduct that does not accord with good faith and honest market practice (§ 4 Abs. 1).
- Do not use or disclose a trade secret that you obtained through such an act of your own, or in breach of an obligation to restrict its use or an obligation not to disclose it (§ 4 Abs. 2).
- Do not obtain, use or disclose a trade secret that came to you through another person where you know or ought to know that the other person used or disclosed it contrary to § 4 Abs. 2 (§ 4 Abs. 3).
- Information is a trade secret only if it is not generally known or readily accessible to the persons in the circles that normally deal with that kind of information, has economic value for that reason, is subject to reasonable secrecy measures by its lawful holder, and there is a legitimate interest in its secrecy (§ 2 Nr. 1).
- Obtaining a trade secret by observing, studying, dismantling or testing a product or object that has been made publicly available is permitted (§ 3 Abs. 1 Nr. 2).
- The prohibitions do not apply where obtaining, using or disclosing a trade secret protects a legitimate interest, in particular the exercise of freedom of expression and information (§ 5 Nr. 1).
These lines are LexLint's reading of the law's text.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Section 23(1) No. 1: imprisonment of up to 3 years or a fine for obtaining a trade secret contrary to § 4(1) No. 1 in order to promote competition, for personal gain, for the benefit of a third party or intending to harm the owner of a business. Section 23(4) No. 1: up to 5 years or a fine where the offender acts on a commercial basis. Attempt is punishable (§ 23(5)). The offence is prosecuted only on application unless the prosecuting authority finds a special public interest in acting of its own motion (§ 23(8)).
Who enforces it
Enforcement body
The holder of the trade secret, through its claim against the infringer for removal of the impairment and for an injunction (§ 6).
Settledness
- As of
- Open questions
- Is data that a website shows to any visitor 'ohne Weiteres zugänglich' to the persons in the circles that normally deal with it under § 2 Nr. 1 Buchstabe a, and so outside the definition of a trade secret, even where the site's terms forbid copying it?
- Is querying an openly available interface and recording its responses a 'Beobachten, Untersuchen, Rückbauen oder Testen' of a product 'das oder der öffentlich verfügbar gemacht wurde' under § 3 Abs. 1 Nr. 2, and so a permitted way of obtaining information?
What it makes you log
Logging duty
Sections 2 to 5 define a trade secret and say when obtaining, using or disclosing one is permitted or prohibited. They impose no duty to create, keep, produce or review a log or record.
- Kind
- None
- As of
What this law does
The Act of serves to implement Directive (EU) 2016/943. The Act took effect on . A trade secret is information that is not generally known or readily accessible to the persons in the circles that normally deal with that kind of information and therefore has economic value, that is subject to reasonable secrecy measures by its lawful holder, and in whose secrecy there is a legitimate interest.
A trade secret may not be obtained by unauthorized access to, appropriation of or copying of documents, objects, materials, substances or electronic files that are under the holder's lawful control and contain the secret or from which it can be derived, or by any other conduct that does not accord with good faith and honest market practice.
A person who obtained a trade secret through an act of their own that is prohibited under paragraph 1, or who breaches an obligation to restrict its use or an obligation not to disclose it, may not use or disclose it. A person who obtained a trade secret through another person may not obtain, use or disclose it where, at the time, they know or ought to know that the other person used or disclosed it contrary to the prohibition on use and disclosure.
A trade secret may be obtained by observing, studying, dismantling or testing a product or object that has been made publicly available, or that is in the observer's lawful possession and not subject to a duty restricting its acquisition. Obtaining, using or disclosing a trade secret is also permitted where a law, a basis in law or a legal transaction allows it.
The prohibitions do not apply where obtaining, using or disclosing a trade secret protects a legitimate interest, in particular the exercise of freedom of expression and information. The holder may claim against the infringer for removal of the impairment and, where repetition is likely or an infringement threatens for the first time, for an injunction. An infringer who acts intentionally or negligently owes the holder compensation for the resulting damage.
Obtaining a trade secret contrary to section 4, paragraph 1, number 1 is punishable by imprisonment of up to three years or a fine where the offender acts to promote competition, for personal gain, for the benefit of a third party or intending to harm the owner of a business. Where an offence under section 23, paragraph 1 or 2 is committed on a commercial basis, the maximum is imprisonment of up to five years or a fine.
When LexLint raises it
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