A former employee may be exposed to the allegation of an act of unfair competition if company correspondence sent to a private account contains information that can be defined as information constituting a trade secret.
According to Article 11 of the Act on Combating Unfair Competition (ACUC), the transfer, disclosure or use of third party information constituting trade secrets, or their receipt from an unauthorized person, is an act of unfair competition if it threatens or breaches the entrepreneur’s interests. A trade secret is understood to be any of the enterprise’s technical, technological or organizational information or other information of commercial value which has not been disclosed to the public, with respect to which the entrepreneur has taken the necessary steps to secure its confidentiality.
It should be remembered that, in order for an allegation of the commitment of an act of unfair competition by a former employee to be effective, all the premises specified below must exist jointly, i.e.:
- The employee used the information that was sent, i.e. he has achieved a benefit or profit, or has performed any operation involving the use of such information for himself or for a third party at the employer’s expense. Such use would, for example, take place if the employee, upon being employed by the employer, did so primarily to obtain valuable information and then used it in his work for a competitor of the employer. The employee possibly provided or disclosed such information to a third party in order to cause damage to the employer. The sale of information to a competitor of the employer in order to gain additional income should also be considered a transfer or disclosure of information.
- Information possessed by a former employee is a business secret, i.e. it is confidential information with economic value. Information protected by the ACUC includes e.g. exclusive rights to an invention which are not yet protected, utility or decorative models, trademarks, technical plans, analyses of mineral deposits, customer lists and methods of quality control of goods and services, marketing, advertising campaigns and the organization of work, unpublished works, data on deliveries, appendices to contracts, bank connections etc. It is generally accepted that such information is subject to secrecy if its possession determines that an entrepreneur maintains or strengthens its position on the market.
– Confidential information is such information with respect to which the employer has deliberately restricted access. The employer should inform the employee about which information should be treated as confidential and should apply appropriate organizational measures to keep it secret from unauthorized personnel. Such action cannot be symbolic, i.e. based, for example, on attaching a “Confidential” note on a document. In its judgement of 3 October 2010 (I CKN 304/00), the Supreme Court held that specific information, even of a very large objective value, cannot be considered confidential because the negligent (or reckless) entrepreneur had not taken any steps to prevent its disclosure.
– Only information that is related to conducting business, having specific economic value to the employer, may be confidential information in the meaning of the ACUC. The economic value is expressed in the fact that the possession of the said information may involve the achievement of competitive advantage in business.
- A threat or breach of the employer’s financial interest arises.