Almost any legal entity today has a number of information that is not subject to public disclosure. Such information constitutes, according to the Civil Code of the Russian Federation, a trade secret. Some provisions of the Russian Civil Code and the Federal Law "On Commercial Secrets" will be discussed in detail in this article.
What is a trade secret?
The Civil Code of the Russian Federation reflects the concept presented in article 139. According to the law, the following information relates to information constituting a commercial secret (insider):
- confidentiality protection by its owner;
- information having the character of commercial value due to its unknownness to unauthorized persons;
- information subject to legal protection from public disclosure.
In accordance with the law, the following signs of trade secrets can be identified:
- usefulness and value of information;
- limited availability;
- A special regime for the protection of information has been introduced.
Details of the concept under consideration can be found not only in the Russian Civil Code, but also in many other regulatory acts. In particular, the Federal Law "On Insider Information" and "On Trade Secret" should be noted.
Legal status of classified information
What place in civil law does non-public information take? According to the law, secrecy itself includes information that is in itself an independent object of civil law. This is stated in Article 128 of the Civil Code of the Russian Federation. Trade secrets can contain information of a diverse nature - such as plans, developments, know-how, information databases, etc. To all this information requires separate approaches and methods of protection, governed by various regulations.
Separately, it is worth highlighting the subjects that constitute a commercial secret. According to the law, it is:
- its owners represented by legal entities and individual entrepreneurs;
- all sorts of confidants - employees, officials, counterparties, etc.
What powers of the represented persons constitute the legal right to trade secrets? Here is what the Civil Code of the Russian Federation indicates:
- the requirement to ensure state protection in case of violation of legal rights;
- the ability to generate, distribute or transmit information of the type in question;
- the right to use secrets to benefit from entrepreneurial activities;
- the ability to require unauthorized persons to comply with the relevant rules that would help ensure the submitted powers.
It is also worth noting that classified information of a commercial type can be enclosed in a wide variety of forms and forms. Each of them will be described below.
Forms of trade secrets
On what volumes and forms of secret information of a commercial type may depend? Specialists in the field of jurisprudence indicate the following nuances:
- the specifics of the professional activities of the organization, its scale and structure;
- a variety of segments in the operating system;
- features of the technologies used, as well as methods and methods of the production process.
What kind of information from the composition of commercial information is most often subject to a classified procedure? This is what the Law on Commercial Secret indicates:
- various kinds of algorithms and formulas that are used in technological type processes;
- the content of the organized construction or research type work;
- design characteristics of manufactured or delivered products;
- the conditions under which long-term financial contracts were concluded;
- codes and combinations in the security system, as well as much more.
In any case, the relevant information is classified if it causes organizational damage, deprives the company of competitive advantages, or has some other negative consequences.
What information is not classified as a trade secret?
Article 5 of the Federal Law "On Commercial Secret" provides a number of information that cannot constitute secret information of a commercial type. Here are some points to note:
- documents confirming the fact of making entries about individual entrepreneurs or legal entities in the relevant state registers;
- documents providing the right to carry out business activities;
- information on the composition of property of a state institution, municipal or state enterprise;
- information about environmental pollution, sanitary, radiation or fire conditions;
- on the number of employees and the wage system;
- information on the conditions of auctions, tenders and other events related to the privatization of state or regional property;
- information on the list of citizens who are given the opportunity to carry out labor activities without a power of attorney;
- facts of violation of the law.
The latest changes to the Federal Law under consideration were made in 2014, and therefore it is likely that in the near future the list presented in Article 5 will be updated.
On the powers of the holder of commercial secrets
What rights does the owner of secret commercial information have? The answer to this question is provided by article 6.1 of the Federal Law "On the Protection of Trade Secrets". So, here it is worth paying attention to the following points:
- Use of information that constitutes a trade secret.
- Formation, change, establishment and cancellation of the status of secrets in accordance with the provisions on commercial secrets of the Civil Code of the Russian Federation in 2016.
- Permission or prohibition of access to classified information.
- The requirement that the relevant persons comply with a number of rules.
- Protecting your rights in the manner prescribed by law.
- The requirement that persons protect confidentiality for one or another information, etc.
Thus, the legal rights of the holder of commercial secrets are quite broad.
Trade secrets and commercial information: is there a difference?
Are the concepts of organizational secrecy and secret information equivalent in this area? A clear answer to this question in the field of jurisprudence has not yet been given. Moreover, most experts believe that the concept of secrecy is somewhat less, and it constitutes an information system. So, the commercial information itself is divided into the following groups:
- technological - it consists of the methods and methods of the formed or applied technologies;
- organizational - here there may be data on the company itself, on its activities, authorized capital, founders, etc.
- financial and planned economic - the content includes business plans, references, reports, investment developments, etc.
- analytical - this includes the results of competitiveness analysis, marketing research, etc.
Commercial information takes the form of closed access, limited distribution, and general availability. It is the first two forms that make up the insider, that is, commercial and official secret. The Civil Code of the 2016 (4 part) governs all the necessary rules related to the presented phenomenon.
Formation of trade secrets
The organization’s management or a special insider commission is involved in compiling a list of information related to commercial secrets. The list itself is formed according to a certain algorithm, according to which at first it is necessary to exclude information of a public nature from the general information mass.The exception occurs in accordance with the list presented above (under Article 5 No. 98-ФЗ). Checking the remaining data occurs according to a number of criteria:
- the degree of profitability of using commercial secrets;
- level of information insecurity by patent or copyright law;
- classified information must not contradict the requirements of the law.
In this case, other criteria are also provided. However, they are formed directly by the owner of trade secrets. Criteria are prescribed in the local act of an organization.
Dismissal for disclosure of trade secrets
The Civil Code of the Russian Federation (from 2017-2016), the Labor Code, individual federal laws - all these regulations state that the disclosure of commercial secrets is a strict violation of the established organizational discipline. Article 81 of the Labor Code of the Russian Federation just refers to the dismissal for violation of the rule in question. But is it always possible for an employer to apply this article? Not really. So, if the employee previously voluntarily undertook not to disclose the secret, or else the information became known to him during the work process, then dismissal as a form of sanction, of course, will follow. 
In other cases, such as inadvertent disclosure or disclosure under strong pressure, the employer may leave the employee in his or her workplace. If the head of the organization is "burning" with the desire to dismiss the guilty subordinate, and the latter resists, then the employer himself will have to prove the employee’s guilt, the fact of violation and compliance with the lawfulness of the procedure for dismissing the subordinate.
Taking over a trade secret
In conclusion, it is worth talking about the main methods of extracting classified information of a commercial type. Heads of organizations or “custodians of insiders” should pay attention to:
- industrial espionage - a fairly common form of unfair competition;
- theft of secret information or its interception;
- to bribe competing companies, as well as other types of illegal activities.
Having received secret information, unscrupulous competitors can use blackmail, the conduct of trade wars, the conclusion of illegal sales and much more.