IrelandEuropean Union (Protection of Trade Secrets) Regulations 2018: Lawful and Unlawful Acquisition, Use and Disclosure
In force since .
An unfair competition rule binding public and private bodies.
- Obligation class
- Prohibition
- Audit expectation
- none
What it requires
- Do not acquire a trade secret, without the holder's consent, by unauthorized access to, appropriation of, or copying of documents, objects, materials, substances or electronic files lawfully under the holder's control that contain the secret or from which it can be deduced (reg. 5(1)(a)).
- Do not acquire a trade secret, without the holder's consent, by any other conduct that, under the circumstances, is considered contrary to proper commercial practice (reg. 5(1)(b)).
- Do not use or disclose a trade secret, without the holder's consent, where you acquired it unlawfully, are in breach of a confidentiality agreement or other duty not to disclose it, or are in breach of a contractual or other duty to limit its use (reg. 5(2)).
- Acquiring a trade secret by observation, study, disassembly or testing of a product or object that has been made available to the public is considered lawful (reg. 3(1)(b)).
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
The offence under regulation 18(1) is contravening or failing to comply with a measure adopted under regulation 10, 11, 12 or 14. On summary conviction: a Class A fine or imprisonment up to 6 months, or both; on conviction on indictment: a fine up to EUR 50,000 or imprisonment up to 3 years, or both.
Who enforces it
Enforcement body
The trade secret holder, who may apply to the appropriate court for the measures, procedures and remedies in the Regulations (reg. 4).
Settledness
- As of
- Open questions
- Is data that a website serves to any visitor a 'trade secret' under the Regulations, which take the meaning of the term from Directive (EU) 2016/943 under regulation 2(2), even where the site's terms forbid copying it?
- Is a crawler's automated collection of pages that a website serves to the public an 'observation, study, disassembly or testing of a product or object' that 'has been made available to the public' under regulation 3(1)(b)(i)?
What it makes you log
Logging duty
Regulations 3 and 5 say when acquiring, using or disclosing a trade secret is lawful or unlawful, and the remaining regulations set court procedure, remedies and one offence. They impose no duty to create, keep, produce or review a log or record.
- Kind
- None
- As of
What this law does
The Regulations came into operation on . The Regulations were made for the purpose of giving effect to Directive (EU) 2016/943 of the European Parliament and of the Council of .
The acquisition of a trade secret without the consent of the trade secret holder is unlawful whenever carried out by unauthorized access to, appropriation of, or copying of any documents, objects, materials, substances or electronic files, lawfully under the control of the holder, containing the trade secret or from which it can be deduced.
The acquisition is also unlawful whenever carried out by any other conduct that, under the circumstances, is considered contrary to proper commercial practice. The use or disclosure of a trade secret without the holder's consent is unlawful where the person acquired it unlawfully, is in breach of a confidentiality agreement or other duty not to disclose it, or is in breach of a contractual or other duty to limit its use.
The acquisition of a trade secret is considered lawful when it is obtained by observation, study, disassembly or testing of a product or object that has been made available to the public. The court must dismiss an application under the Regulations where it is satisfied that the alleged acquisition, use or disclosure was carried out for exercising the right to freedom of expression and information.
Where the court finds on the merits that a trade secret was unlawfully acquired, used or disclosed, it may order the cessation or prohibition of the use or disclosure of the trade secret. The court must order an infringer who knew or ought to have known of the unlawful conduct to pay the holder damages appropriate to the actual prejudice suffered.
A person who contravenes or fails to comply with a measure adopted under Regulation 10, 11, 12 or 14 commits an offence, punishable on conviction on indictment by a fine of up to EUR 50,000 or imprisonment of up to 3 years, or both.
When LexLint raises it
When your app profile says your app crawls the web or trains models.
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