Data has long since become a decisive competitive factor in many industries. Whoever has the right data dominates the market. However, the growing volume of data also brings with it an increasing risk of data misuse. A recent case from Vienna demonstrates the importance of appropriate and legally secure measures to protect trade secrets:
A fund and financial data provider applied for comprehensive measures within the framework of a preliminary injunction to protect against infringements of trade secrets pursuant to Section 26i of the German Unfair Competition Act (UWG) and to preserve evidence pursuant to Section 87c of the German Copyright Act (UrhG) against a former employee. After leaving the company, she continued to access internal data for several months and used it to poach customers from her new employer. The employee reported directly to management and was involved in central processes. The company had failed to block the employee's access to the IT system after her departure. The employee had previously signed at least a declaration of commitment in which she undertook to treat trade secrets confidentially.
The central issue of the legal assessment was the question of whether a trade secret within the meaning of Section 26b of the German Unfair Competition Act (UWG) had been established and whether sufficient confidentiality measures had been taken by the company. Section 26b of the UWG defines a trade secret as information that is secret and has economic value. Furthermore, it must be kept secret by the person who possesses it through appropriate measures. A mere desire for secrecy is not sufficient to establish a trade secret. Anyone invoking a trade secret must also be able to prove, in the event of a dispute, that confidentiality measures were actually implemented.
The appeal court, amending several decisions of the court of first instance, dismissed the application for an injunction. The applicant had not adequately explained the alleged trade secrets or the infringements. Furthermore, the court lacked appropriate protective measures, which are essential for the existence of a trade secret under Section 26b of the Unfair Competition Act (UWG). The Supreme Court (OGH) upheld the decision, citing Section 26b of the UWG and emphasizing that precisely such appropriate protective measures had not been taken. The mere contractual obligation to confidentiality did not constitute a sufficient confidentiality measure within the meaning of Section 26b of the UWG.
This case highlights that legally compliant protection of trade secrets requires more than a signed piece of paper. Companies must review internal processes and implement effective data security measures to protect their trade secrets. It is essential to seek advice before a legal dispute arises in order to consistently secure company data and comply with the requirements of Section 26b of the German Act Against Unfair Competition (UWG). These must always be adapted to the circumstances of the individual case and can vary considerably depending on the type of trade secret, industry, company size, etc. Therefore, it is essential to find individual solutions.
Supreme Court 19.11.2024, 4Ob195/24s
28.11.2024