Trade secret in the confidential information system

Trade secret of an enterprise and confidential information - what is the difference?

Today, a very important tool in the field of competition is the use of various methods in order to find out the confidential information of a particular enterprise. What is a trade secret? This is secret information that...
Return to Civil Law One of the types of objects of civil rights is information. In accordance with the Law of the Russian Federation “On Information, Informatization and Information Protection,” information is “information about persons...

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Trade secret as a way to protect confidential information

4. a specialist who has all the information about the manufactured product, the technological cycle of its design and production, about the passage of all types of information (oral, documentary, in the form of samples, assemblies, blocks, finished products).

production (commercial) secrets represent a more complex object of protection. The question arises about the need to ensure external and internal security of structural business associations. To solve it, you can use private business firms, private security services (i.e., which operate independently, taking

The difference between a trade secret and confidential information

• determining the potential value of information;
• assessing the degree of its vulnerability;
• forecasting possible threats;
• carrying out a set of measures to limit access to protected information and create conditions that exclude or complicate unauthorized access to it.

• on the commercial activities of an economic entity;
• the composition of which is determined by its owner;
• protected by its owner and persons who received secret commercial information in the manner prescribed by law (government officials, contractors, etc.).

The main difference between confidential information and secret commercial information

Based on the terms confidential information and trade secret deciphered in the previous sections, we can formulate their main difference:

• a trade secret consists of confidential information that has a specific focus, related only to the market activities of an economic entity (with the goal of making a profit);
• the term “confidential information” does not have a specific connotation and includes a wider range of information with limited access (in addition to secret commercial information): personal data, information constituting an official secret, professional secret, etc.

For more information about the types of confidential information, see the article “What is the difference between official secrets and professional secrets?”

Find out about other differences between the concepts under consideration in the next section.

Trade secret of an enterprise and confidential information - what is the difference?

The information itself about how much production actually costs , what is the percentage of profit in production, what is the percentage of capacity utilization - all this will be a trade secret of the manufacturer, because the publication of such data will allow the buyer to better understand the situation and ask for the most favorable price for themselves .

It is impossible to list all types of confidential information, but it is already clear that trade secrets occupy only a small part of this data array.

Relationships with other persons

Trade secrets involve concealing from outsiders information about which companies are expected to work with, what steps have been taken in this direction, whether negotiations are ongoing and at what stage they are at. In addition, data reflecting orders and proposals received by the company and taken into work by it are subject to secrecy.

In addition to the directly listed information, a trade secret also includes indirect data associated with it. For example, when analyzing classified information, the resulting product is data that is also unacceptable for disclosure.

Trade secrets and confidential information

If disputes arise regarding the dismissal of an employee for the above reasons, the employer is obliged, among other things, to prove that the information disclosed by the employee actually refers to a secret or information protected by law (clause 43 of the resolution of the plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

The mere fact of approval of a list of information constituting a trade secret of an organization is not enough to recognize it as confidential data (if it is not classified as such by law). In Art. 10 and 11 of Law No. 98-FZ establishes a list of measures that the owner of information must implement in order for it to acquire the status of a trade secret with all the ensuing consequences.

What is confidential information?

Confidential information is a set of information in respect of which there is a ban on their transfer by persons who have access to such information to third parties without the consent of the copyright holder (see paragraph 8 of Article 2 of the Law “On Information...” dated July 27, 2006 No. 149- Federal Law).

The list of data that can be classified as confidential information is established in the list approved by Decree of the President of the Russian Federation dated March 6, 1997 No. 188. These include:

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• Personal Information;
• secret of the investigation;
• secrecy of legal proceedings;
• official secret;
• professional secrecy (for example, medical or lawyer's secrecy, etc.);
• trade secret;
• data on inventions or discoveries before their official publication;
• information posted in the personal files of prisoners, and data on the enforcement of acts of the court, other bodies or officials.

As you can see, confidential information includes various types of secrets. In this case, the same information can be simultaneously classified into different categories of confidential information. Thus, personal data may be part of information constituting medical confidentiality, etc. The composition of information and the criteria for classifying it into various groups of information are determined by separate laws (for example, the Law “On Personal Data” dated July 27, 2006 No. 152-FZ, etc. .d.).

Let us note that state secrets are not included in the list of information of a confidential nature and are regulated by separate regulatory legal acts (including paragraph 4 of Article 29 of the Constitution of the Russian Federation, the Law of the Russian Federation “On State Secrets” dated July 21, 1993 No. 5485-I ). This kind of secret is characterized by varying degrees of secrecy.

Difference between trade secret and confidential information

Confidential information in itself is not a trade secret. In order for information to be recognized as a trade secret, a trade secret regime must be introduced. The owner of the information himself determines the list of information that constitutes a trade secret. That is, one party is not obliged to guess that for the other party the information is confidential and it does not want to disseminate it.

As a general rule, after the owner of the information has taken these measures, the trade secret regime is considered established (clauses 1 and 2 of Article 10 of the Federal Law of July 29, 2004 No. 98-FZ “On Trade Secrets”, hereinafter referred to as the Law on Commercial Secrets). secret).

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Drawing up a non-disclosure agreement for trade secrets

Information constituting a trade secret must be specified in advance in a special agreement.

It usually contains the following important information:

• all information that cannot be disclosed in the process of work;
• nuances of access to important information;
• options for penalties for this or that type of disclosure;
• employee confidentiality responsibilities;
• procedure for terminating access.

These documents specify not only the options for trade secrets, but also the period during which a person must keep them.

Often, even after dismissal, a former employee does not have the right to say anything about the company’s actions for 2-3 years .

Also, many entrepreneurs limit access to the most important information, and therefore the agreement specifies the nuances of obtaining such information.

Almost always, a contract is concluded at the moment the employee starts working.

Adjustments can be made to the document itself, but only with the consent of the employee.

A person also has the right to refuse to sign papers, demanding to be provided with a place that does not require the preservation of confidential information.

The real Dolinskaya truth

Article 139 of the Civil Code of the Russian Federation defined a trade secret as information that has a set of specific characteristics that make it possible to classify it as such. The Federal Law of July 29, 2004 “On Trade Secrets” characterizes a trade secret as information that is confidential, but does not clarify the term “confidentiality” itself. Meanwhile, the meaning that is given to it in everyday life allows it to be interpreted as “secrecy”, “unknown to third parties”.

The Labor Code does not contain its own definition of the concept of a trade secret (in necessary cases, the previously in force Article 139 of the Civil Code of the Russian Federation and the definition that was given in the original version of the Law “On Trade Secrets” were applied subsidiarily). Therefore, it is necessary to understand the content of the concept of “production secrets (know-how)” and correlate it with the concept of “trade secret”, which, along with it, remains in the legislation and, what is especially important for us, in the Labor Code of the Russian Federation.

Consequences of incorrect definition of information confidentiality regime

Particular attention should be paid to the legal regime of certain data in respect of which an organization or individual entrepreneur wants to establish a confidentiality regime.

Case Study

The court reinstated the employee at work as illegally dismissed under sub. “c” clause 6, part 1, art. 81 of the Labor Code of the Russian Federation for the disclosure of personal data of counterparties of the employing organization. At the same time, during the dismissal it was not taken into account that this clause provided for dismissal for the disclosure of personal data of employees, which in fact did not happen (see the decision of the Lomonosovsky District Court of Arkhangelsk dated 06/03/2009 in case No. 2-1880/09).

If the employer had in mind that such data constituted a trade secret of the enterprise, they should have been included in the appropriate list and other procedures provided for in Art. 10 of Law No. 98-FZ of the event (see the determination of the Kursk Regional Court dated May 3, 2012 in case No. 33-932-2012).

If disputes arise regarding the dismissal of an employee for the above reasons, the employer is obliged, among other things, to prove that the information disclosed by the employee actually refers to a secret or information protected by law (clause 43 of the resolution of the plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2).

At the same time, excessive vigilance of the owner of information that according to the law cannot be classified as one or another type of secret protected by law, even if the local documentation of the organization states the opposite, can also lead to litigation.

For example, in its decision dated July 12, 2010 in case No. 2-340/2010, the Suoyarvi District Court of the Republic of Karelia found that the employer’s refusal to provide copies of the staffing table at the employee’s request did not comply with the requirements of the law on the grounds stated above.

So, a trade secret is one of the modes of confidentiality of information. Thus, the term “confidential information” has a broader meaning than “trade secret.”

If the data is not directly designated in the law as confidential, it must be properly classified, for example, as a trade secret (if this does not contradict the law). In this case, the owner of the data will be able to apply appropriate penalties to the person who illegally disclosed such data (this issue is discussed in more detail in our article “Responsibility for Disclosure of Trade Secrets”).

Decree 188 of the President of the Russian Federation dated March 6. '97.

· Law “On Information, Informatization and Information Protection” / Article 5

· Decree of the President of the Russian Federation of March 6, 1997

· Criminal Code of the Russian Federation / Article 139

· Decree of the Government of the Russian Federation “On the list of information that cannot constitute a commercial secret”

SIX secrets:

1). Private life

2). Investigations and proceedings

4). Professional (medical, lawyer, telegraph operator)

6). The Mystery of the Invention

11. STATE SECRET:

1). The state has the right to protect its secrets from journalists and audiences.

2). The priority of the interests of the individual and society over the interests of the state.

3). The ability to hide the mistakes of managers.

ARTICLE 5 Federal Law “Law on State secret"

1. Information in the military field
2. In the field of economics, science, technology.
3. areas of intelligence and counterintelligence, operational and investigative activities
4. foreign policy and economics.

ARTICLE 7 Federal Law “On State secret"

The following information is not subject to classification as state secret and classified information:

(as amended by Federal Law dated October 6, 1997 N 131-FZ)

about emergency incidents and disasters that threaten the safety and health of citizens, and their consequences, as well as about natural disasters, their official forecasts and consequences;

about the state of ecology, health care, sanitation, demography, education, culture, agriculture, as well as the state of crime;

on privileges, compensation and social guarantees provided by the state to citizens, officials, enterprises, institutions and organizations;

(as amended by Federal Law dated August 22, 2004 N 122-FZ)

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about facts of violation of human and civil rights and freedoms;

on the size of the gold reserves and state currency reserves of the Russian Federation;

on the state of health of senior officials of the Russian Federation;

about facts of violation of the law by public authorities and their officials.

Officials who made decisions to classify the listed information or to include it for these purposes in carriers of information constituting state secrets bear criminal, administrative or disciplinary liability depending on the material and moral damage caused to society, the state and citizens. Citizens have the right to appeal such decisions in court.

Date added: 2015-08-11; ; ORDER A WORK WRITING

Trade secrets and confidential information, unlike other types of information with limited access, have many common features. How these concepts coincide and differ, we will explain in our material.

Trade secret of an enterprise

At the same time, the information under consideration includes only those information that, firstly , have a certain value and allow you to receive real income through their use, and secondly , are not publicly available, but access to them is not guaranteed by law. Thus, for example, concealing information about the chemical composition of a food product is illegal and does not allow this information to be classified as a trade secret, while the method of preparing the final product may well be the secret in question. Also, a common requirement for recognition of information as protected by law is the mandatory provision by the owner of the data of measures to protect it.

• Personal Information . Russian legislation, in accordance with international agreements, ensures the protection of personal information of citizens and other persons, preventing their processing and use, as well as disclosure without consent. At the same time, personal data can be either publicly available or private and is also divided into several types. You can read more about what personal data is in a separate section.
• State secret . A number of information held by government bodies or structures also have the status of secrets protected by law. At the same time, responsibility for their disclosure is also higher than for the dissemination of trade secrets, as well as the procedure for working with such data. After all, they can often be of strategic importance for the security of citizens or the entire state. A separate type of state secret can be called military.
• Intellectual property. Russian legislation contains a large amount of information and methods for regulating the concept of intellectual property, copyright and mechanisms for their protection. At the same time, both the mechanisms for ensuring the protection of intellectual property and the measures of liability for its illegal receipt or use differ from the legal regulation of the type of protected information in question.
• Professional secret. In the Russian Federation there are also a number of other types of confidential information, primarily related to the professional activities of certain categories of citizens. These include medical, notarial, lawyer and other types of secrets, the disclosure of which is also punishable by law and protected by regulatory documents and acts.

Regulations on trade secrets at an enterprise and work with confidential documents

Regulation of all issues related to the operating procedure and information security algorithms can be carried out using a separate local document - regulations on trade secrets, instructions for working with confidential information, etc.

Its structure and content are not regulated by law, therefore each business entity draws up such a document independently, taking into account the requirements of the regulatory documents discussed in our material.

The main sections of such a document may include the following:

1. Organizational (deciphering the goals and grounds for developing the document, detailing terms and definitions).

2. Main, containing a description:

• groups and names of confidential information;
• procedure for access to confidential information;
• algorithms for working with confidential information;
• information storage procedure;
• control schemes for the procedure for accessing information and the procedure for working with it;
• measures of liability for disclosure of confidential information.

3. Final (the procedure for familiarizing employees with the document, the scheme for putting it into effect, as well as the procedures for its correction and cancellation).

You can find the finished document on our website - see the material “Regulations on Trade Secrets - Sample 2017” .

Trade secrets of the enterprise and confidential information

Restricted information includes unclassified information related to the activities of the enterprise (management structure, accounting and statistical reporting, job descriptions, etc.

Only if the possible damage arising from the disclosure of information significantly exceeds the costs of protecting it, does it make sense to include this information as confidential and organize its protection, including with the involvement of the physical security of private security companies (Security of offices and office centers).

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Additional distinguishing feature of confidential and sensitive business information

Another feature that distinguishes information classified as a trade secret from confidential information is the method used to classify information:

• the list of confidential information is determined by the state (Decree of the President of the Russian Federation No. 188);
• the formation of a list of secret commercial information is the exclusive prerogative of its owner (Article 4 of Law No. 98-FZ), with the exception of the list of information not subject to classification established by law (Article 5 of Law No. 98-FZ).

When compiling a list of secret commercial information, the following is taken into account:

• the company's area of ​​activity;
• the specifics of her work;
• applied technologies;
• characteristics of suppliers;
• interests of competitors, etc.

We will tell you in the next section which document contains the “secret” list.

On our portal you will learn about the differences between related concepts used by most taxpayers - see materials:

• “What is the difference between renting and leasing?”;
• “What are the main differences between PBU and IFRS?”.

What is the difference between confidential information and trade secret

In accordance with Article 1 of the Law of the Republic of Belarus dated January 5, 2013 No. 16-Z “On Trade Secrets,” a trade secret is information of any nature (technical, production, organizational, commercial, financial and other), including production secrets (know -how), complying with the requirements of this Law, in respect of which a trade secret regime has been established. By virtue of Article 5 of the Law of the Republic of Belarus dated January 05, 2013 No. 16-Z “On Trade Secrets,” a trade secret regime can be established in relation to information that simultaneously meets the following requirements: are not generally known or easily accessible to third parties in those circles that are usually deal with this kind of information; have commercial value for their owner due to unknown to third parties; are not objects of exclusive rights to the results of intellectual activity; are not classified as state secrets in accordance with the established procedure. Information has commercial value if its possession allows a person, under existing or possible circumstances, to increase income, reduce expenses, maintain a position in the market for goods, works or services, or obtain other commercial benefits.

In accordance with Article 17 of the above-mentioned Law, information, the distribution and (or) provision of which is limited, includes: information about the private life of an individual and personal data; information constituting state secrets; restricted proprietary information; information constituting commercial, professional, banking and other secrets protected by law; information contained in cases of administrative offenses, materials and criminal cases of criminal prosecution authorities and courts before the completion of the proceedings; other information, access to which is limited by the legislative acts of the Republic of Belarus.

Surely many of us have come across the term “ trade secret ,” but its meaning remained completely unclear. Only a few companies bother to protect commercial information and issue local regulations regulating the rights and obligations of employees when using information that represents this kind of secret. At the same time, the leakage of such information threatens the company with large losses, and it is not always caused by the deliberate actions of any of the employees. What is a “ trade secret”

In accordance with Art. 3 of the Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets” (hereinafter referred to as the Federal Law), a trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, and maintain a position in the goods market , works, services or receive other commercial benefits. In this way, almost any commercially valuable information can be “classified”: information about suppliers, materials used in production, equipment, production technology, and much more.

How to “ enable” trade secret mode

In order to limit access to important information, the company is obliged to take a number of measures:

• determine the list of information constituting a trade secret;
• limit access to information constituting a trade secret by establishing a procedure for handling this information and monitoring compliance with such a procedure (as a rule, this procedure is established in the “Regulations on Trade Secrets”);
• organize a record of persons who have gained access to information constituting a trade secret and (or) persons to whom such information was provided or transferred;
• regulate relations regarding the use of information constituting a trade secret by employees on the basis of employment contracts and by contractors on the basis of civil law contracts;
• applied to tangible media, i.e. documents containing information constituting a trade secret, stamped “Trade Secret” indicating the owner of this information (for legal entities - full name and location, for individual entrepreneurs - last name, first name, patronymic of a citizen who is an individual entrepreneur, and place of residence).

Employees who have access to such information must sign a non-disclosure agreement to not disclose information constituting a trade secret, otherwise it will be impossible to hold such employee liable.
Only after all the above measures have been taken, the trade secret regime is considered established. In accordance with paragraph 4 of Art. 10 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting”, the contents of accounting registers and internal accounting reports are by default a trade secret , therefore, in relation to this information, the application of the above measures is not mandatory.

What cannot be a trade secret

The list of information that cannot be a trade secret is specified in Art. 5 of the Federal Law. So, this is the following information:

• contained in the constituent documents of a legal entity, documents confirming the fact of making entries about legal entities, as well as individual entrepreneurs in the relevant state registers (this information is open by law and can be obtained by any person, including from state registers);
• contained in documents giving the right to carry out entrepreneurial activities (see previous paragraph);
• on the composition of the property of a state or municipal unitary enterprise, state institution and on their use of funds from the corresponding budgets (do not forget about the state secret regime, which many state enterprises fall under);
• about environmental pollution, the state of fire safety, the sanitary-epidemiological and radiation situation, food safety and other factors that have a negative impact on ensuring the safe operation of production facilities, the safety of each citizen and the safety of the population as a whole (dissemination of this information cannot cause losses) ;
• on the number, composition of employees, the remuneration system, working conditions, including labor protection, indicators of occupational injuries and occupational diseases, and the availability of vacancies (the dissemination of this information cannot cause losses);
• about employers' debts for wages and other social benefits (dissemination of this information cannot cause losses);
• on violations of the legislation of the Russian Federation and facts of bringing to responsibility for committing these violations (since the process of bringing a person to justice is in most cases open, with the exception of cases of use during the process of information constituting state and commercial secrets, then, accordingly, the results of this process are also are publicly available);
• on the conditions of competitions or auctions for the privatization of state or municipal property (information is in the public domain);
• on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and remuneration of their employees, on the use of gratuitous labor of citizens in the activities of a non-profit organization (the dissemination of this information cannot cause losses);
• on the list of persons who have the right to act without a power of attorney on behalf of a legal entity (anyone can obtain this information in the form of an extract from the Unified State Register of Legal Entities);
• the mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.

Officials as a threat
Unfortunately, the Federal Law establishes the complete defenselessness of the owner of information before the state. According to Part 1 of Art. 6 of the Federal Law, the copyright holder, at the request of a “state authority, other state body, or local government body, provides them with information constituting a trade secret free of charge.” Given the multitude of “other government agencies” and their penchant for obtaining information about profitable business activities, abuse of the provisions of this rule is inevitable.

The reluctance of companies to obediently follow the requirements of “other bodies” allowed the legislator to require the provision of information in court. Those who are particularly disobedient face administrative liability under Art. 19.7 of the Code of Administrative Offenses of the Russian Federation for failure to provide the required information. The sanction of this article provides for punishment in the form of a fine:

• for citizens in the amount of 100 to 300 rubles;
• for officials - from 300 to 500 rubles;
• for legal entities - from 3,000 to 5,000 rubles.

Upon detailed study of the provisions of the Federal Law, it becomes clear that from the moment a trade secret is provided to “other government bodies,” information leakage is inevitable.
Art. 13 “Protecting the confidentiality of information when provided” is purely declarative in nature. This norm does not provide for restriction of access to information, personalization of liability, features of storage of information media, etc. The bottom line is complete impunity for officials. Yes, part 3 of Art. 14 of the Federal Law establishes the civil liability of “other government bodies” to owners of information in the event of disclosure or illegal use of trade secrets by their employees. But what is the price of this responsibility? Methods for determining losses (especially lost profits) due to loss of confidentiality are, in principle, difficult to develop and are currently non-existent.

Part 1 art. 14 of the Federal Law also provides for criminal liability for offenders. According to the provisions of Art. 183 of the Criminal Code of the Russian Federation, which punishes “illegal receipt and disclosure of information constituting commercial, tax or banking secrets”, such an action can lead to imprisonment for up to 10 years. However, given the ambiguity of classifying information as a trade secret, the numerous possibilities for obtaining and transmitting relevant information against the will of the copyright holder, the successful application of criminal sanctions in practice seems unlikely. Unfortunately, for the same reasons, it is almost impossible to hold even an ordinary person accountable for disclosing information constituting a trade secret.

trade secret

In each specific case, in order to assess the feasibility of classifying this or that information of an enterprise as a trade secret, it is necessary to create a special commission from among the most qualified specialists. For all documentation containing secrets, it is necessary to develop an original notation system that distributes information according to the degree of secrecy, and then organize a clear procedure for admitting employees to this documentation.

• capital structure;
• mechanism for setting product prices;
• banking and trading operations;
• information on the efficiency of exports and imports;
• organization and amount of funds turnover;
• actual state of sales markets;
• level of solvency of the enterprise, etc.

Responsibility for disclosure of an organization's trade secrets

Disclosure of trade secrets, i.e. transfer of data to third parties (both intentionally and through negligence) is an unacceptable action or consequence of inaction, due to which the company bears real or potential commercial and reputational risks. Employees who disclose trade secrets bear disciplinary, civil and even criminal liability, depending on the degree of their guilt and the severity of the consequences.

As a rule, companies tend to fire employees who make disclosures through negligence or for personal gain. In some cases, organizations turn to law enforcement agencies to initiate criminal proceedings. Moreover, a person may be held liable even for the fact of the disclosure itself, regardless of whether the corresponding consequences occurred or not.

Legal basis for the activities of tax authorities

The order of inheritance by law in accordance with the current civil legislation. Peculiarities of application of the right to an obligatory share in the inheritance. Inheritance of escheated property. Problems associated with inheritance of certain types of property.

Subjects of the right to trade secrets. Changes that have occurred in the legal regulation of the institution of trade secrets. Rights of trade secret holders. Intellectual property in the legislative system. Legal protection of trade secrets.

Trade secrets and confidential information

“General provisions” - on the basis of current legislation and regulatory and methodological documents, the concept of a trade secret is defined, the goals of this instruction are established, and employees or departments responsible for working with documents constituting a trade secret are determined.

Commercial information contains information about the financial and economic position of the enterprise (accounting statements), loans and banking transactions, concluded agreements and counterparties, capital structure and investment plans, strategic marketing plans, analysis of the competitiveness of its own products, clients, production development plans, business correspondence and etc.

What if it’s simpler?

If we put together everything that is stated above, we can come to the following conclusion: a trade secret is usually understood as an inalienable right of any company, which allows some data inside to be called secret and protected. However, the information will not be a secret at the state level. The secret is connected with the activities of the company, with its management decisions, technological developments, and monetary aspects. A key indicator of classifying some information as a trade secret is the damage to the economic position of the organization in the event of publication of the data.

A secret can be considered not only information that is already valuable from a commercial point of view, but also any information that has the potential to become so. The list of information constituting a commercial official secret contains all those types of data that should not fall into the hands of third parties so that the company does not suffer losses. It will not be possible to obtain access to such information legally, but the company must take protective measures.