Trade secret in the organization. Employer's trade secrets. How should CT be administered in an enterprise

The number of incidents related to the loss of confidential information is increasing every year: Russia has the second largest number of leaks of important information in the world after the United States. In 92% of cases, confidential personal data of customers, partners and employees of companies are disclosed, in 55% of cases the culprit were current or former employees.

Secret has learned how entrepreneurs can protect themselves from leaks and maintain good relationships with employees.

Trade secret mode

The trade secret regime allows you to determine the procedure for accessing information and require third parties to whom such information has become available to protect its confidentiality. First, you need to figure out what information cannot be classified - this is information about violations of the law, about salary delays, about the company's income and the number of employees, and more.

To enter a trade secret regime, you need:

1. Draw up a list of confidential information and restrict access to it, that is, prescribe the procedure for handling such information.

For example: if you want to classify information about your clients, you should determine which of the employees has the right to access the databases, how to get permission, where to store the databases and the password to them, how to use the program that stores the secret information.

2. Determine the measures of responsibility for violation of the order

3. Compile from the above documents local act

4. Under the signature, familiarize each employee with the local act, who will be given access to confidential information. Records of such employees should be kept separately. It is important that the obligation to maintain confidential security is spelled out in the employee's employment contract. If there is no such clause in the employment contract, you will have to take the employee's written consent to provide him with access to confidential information. In theory, one could supplement this instead labor contract but the extension job responsibilities can lead to a change in other points, for example, a salary revision.

5. If necessary, introduce regulation of relations on the use of confidential information between employees and contractors of the company (fits into civil law contracts).

6. Put the stamp "commercial secret" indicating the full name and location of the company on all material carriers and in the details of all documents containing confidential information.

After you have done everything described above, the trade secret regime begins to operate. This means that you will have the right to demand from an employee who violated this regime, compensation for losses (Article 139 Civil Code RF) - even if he has already left the company or disclosed the data after his dismissal. The offender can also be comprehended by criminal punishment (Article 183 of the Criminal Code of the Russian Federation).

The validity period of the trade secret regime is established by its owner - in the same local acts.

Know how

Tangible results of intellectual property (inventions, utility model or industrial design) are protected by a patent, but what about the information about their production? “In practice, the question often arises of how a company can protect its rights to non-patented intellectual property developed by its employees,” says Alexei Gorodissky, partner of the law firm Andrey Gorodissky & Partners. The trade secret regime covers information that can be considered a production secret if it has commercial value, which is retained precisely because it is unknown to third parties.

“The issue of ownership of the company of property rights to the secrets of production developed by its employees is very important. The introduction of a trade secret regime in the company will not be enough to protect the exclusive rights of the company to the secrets of production developed by its employees, if such rights remain with the authors, ”warns Aleksey Gorodissky. In order for the development rights to initially belong to the company, it is necessary to secure in the employment contract with the employee the provision on the creation of the results of intellectual activity on the instructions of the employer. In the process of work, the assignments must be documented, brought to the workers against signature, demanding performance reports and acts of transferring the results of the company's intellectual activity. Then the secret of production can be qualified as a service secret.

Non-disclosure agreement

Some employees come to the company for a short time - you do not enter into employment contracts with them, and it is not easy to get them to comply with the trade secret regime. In this case, you can use a non-disclosure agreement (NDA). This is a legal contract: you need to general outline register confidential information that the parties undertake not to disclose. In the case of a hired employee, the non-disclosure agreement will be one-sided, since only one party will supply information - the company.

Alexey Petrusha Director of legal issues Parallels in Russia, the Middle East and Africa

Parallels protects trade secrets, know-how, formulas, constructions, processes - everything that can become the basis for a patent application. Now we have about 200 issued patents, applications for the grant of patents for inventions are formally subject to trade secrets (CT), but only until the official publication of information about the application on the website of the US Patent Office. HR data is also important, including information about salaries, candidates, personnel reserve... We publish a list of documents that constitute a commercial secret on the company's internal portal. After familiarizing employees with this list, we make sure that the restrictions are respected. For example, some documents should not be left forgotten at the reception, in a nearby printer or in an urn instead of a shredder. Or contact databases should be stored only in Salesforce, so that they cannot be printed and copied.

For ourselves, we have developed several informal rules for dealing with commercial secrets. First, you should not share confidential information with employees unnecessarily. We rank employees according to the level of access to such data: for example, we identify cases of inappropriate handling of information that can be regarded as CT, and we provide these employees with less classified information. Secondly, when informing an employee about CT objects, one should not expect that he understands that this is a secret. Therefore, there is a memo to all our labor contracts, which in human language directly indicates what is classified information. Finally, in case of conflicting layoffs, it is advisable to disconnect the employee from all important databases so that he does not copy them. One of our employees, upon dismissal, tried to sell the database to competitors, but was prosecuted, the trade secret regime allows this. We also have a list of companies in which it is undesirable to find a job after dismissal - these are competitors with a similar business.

There are several categories of unemployed employees and legal entities with whom Parallels signs a non-disclosure agreement. This applies to situations when we have not concluded contracts with a supplier, or when, within the framework of due-diligence (the procedure for verifying the investment object, - "Secret"), we provide information about our software products... The same agreements are signed by all our trainees. Since we have no labor relations with trainees, but have civil law relations, the NDA “closes” the part on commercial secrets. NDA is also signed by students who study in Parallels Labs laboratories at universities. With such guys, the NDA ensures the ownership of the results of their research carried out as part of the work in the laboratory, Plus, a list of things that cannot be disclosed within the framework of these works is separately determined.

Evgeny Nepeivoda Managing partner of the "Kinodoctor" company

We lease specialized car trailers for filming - these are car complexes in which the stars prepare for filming and rest during breaks. The auto trailers themselves are our unique development, they are patented. But beyond this invention, our employees are faced with confidential information that needs to be protected. This is due to the specifics of the work: stars are often at the sites, and the drivers of auto trailers see things that outsiders should not know about. Therefore, we have a trade secret regime: in addition to what employees see on the set, any information about the stars obtained in the course of work is protected, and all business processes. Each person in the contract spelled out responsibility for disclosing confidential information - a fine in the amount of 100,000 to 500,000 rubles, this is a tangible amount, so that a person thinks about whether it is worth sharing what he saw with someone. Even when hiring, we carry out a serious selection process. There were cases when competitors tried to send spies to work for us, and after that we introduced a polygraph test for everyone who gets a job at Kinodoktor. And upon dismissal, a person has temporary obligations not to work in companies with similar specifics.

Alexey Ilyin General Director of the publishing group "Alpina Publisher"

Despite the fact that the publishing business is the production of a creative intellectual product, there is not much to steal from it with all the will. Publishing rights, illustrations, translations are all protected by copyright contracts. The information that can be stolen from the publisher and harm him is not specific: long-term plans, strategy, plans to buy rights, etc. Publishers, as a rule, do not use special measures to protect against information leaks of this kind. Careful selection of employees is the main insurance against potential problems. As a rule, there is enough time for the interview in order to find out if the moral principles of the candidate coincide with what is accepted in the company. To be a successful publishing house requires maximum staff engagement and dedication. Maintaining such an attitude towards work can only be achieved in conditions of trust. The introduction of safety regulations or special clauses in the contract, threats of various punishments in case of violations, as a rule, are a manifestation of mistrust in the employee. This negatively affects the atmosphere in the team and reduces the level of creativity.

trade secret- information confidentiality regime, which allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market of goods (works, services) or obtain other commercial benefits.

Information that constitutes a commercial secret - any information (production, technical, economic, organizational and others), including the methods of implementation professional activity that have real or potential commercial value due to their unknown to third parties, to which third parties do not have free access on a legal basis and in respect of which the owner of such information has introduced a commercial secret regime.

Owner of information that constitutes a commercial secret - a person who owns information that constitutes a commercial secret on a legal basis has restricted access to this information and established a commercial secret regime in relation to it.

Disclosure of information that constitutes a commercial secret is an action or inaction, as a result of which information constituting a commercial secret in any possible form (oral, written, other, including using technical means) becomes known to third parties without the consent of the owner of such information or contrary to an employment or civil contract.

Trade secret: assignment of data to it, methods of obtaining

Taking into account the provisions of the Federal Law of July 29, 2004 N 98-FZ "On Commercial Secrets", the right to classify information as information constituting a commercial secret, as well as to determine the list and composition of such information belongs to its owner.

Information constituting a commercial secret, which is obtained from its owner on the basis of an agreement or on any other legal basis, is considered to have been obtained in a legal way.

In accordance with Part 4 of Article 4 of the Federal Law "On Commercial Secrets", information constituting a commercial secret owned by another person is considered to be obtained illegally if:

Its receipt was carried out with deliberate overcoming of measures taken by the owner of information constituting a commercial secret to protect the confidentiality of such information;

If the person receiving this information knew or had sufficient reason to believe that this information is a commercial secret of its owner of another person, and that the person transferring this information has no legal basis for its transfer.

Information that cannot constitute a commercial secret

The trade secret regime cannot be established in relation to the following information:

3.on the composition of the property of a state or municipal unitary enterprise, state institution and on their use of the funds of the respective budgets;

4.about pollution the environment, state of fire safety, sanitary-epidemiological and radiation conditions, safety food products and other factors that have a negative impact on ensuring safe operation production facilities, the safety of every citizen and the safety of the population as a whole;

5.on the number and composition of employees, the remuneration system and working conditions (including labor protection), indicators industrial injuries and occupational morbidity, as well as the availability of jobs;

6. about employers' arrears in salary payments, as well as other social benefits;

7. on violations of Russian legislation and the facts of bringing to responsibility for committing such violations;

8. on the terms of tenders or auctions for the privatization of state and municipal property;

9. 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, as well as on the use of free labor of citizens in the activities of non-profit organizations;

10. on the list of persons who have the right to act without a power of attorney on behalf of a legal entity;

11. the obligatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws in addition to the Federal Law "On Commercial Secrets".

Trade secrets and provision of information

Owner of information constituting a commercial secret, at the motivated request of a public authority, other public authority, body local government provides it to the indicated state bodies on a gratuitous basis.

A motivated request must be signed by an authorized official, contain an indication of the purpose, legal basis for the request and the term for providing such information, unless otherwise provided by current legislation.

If the owner of the specified information refuses to provide them with a reasoned requesting state body (local self-government body), these bodies have the right to request such information in court.

The owner of such data, as well as state bodies (local self-government bodies) that received them on the basis of a reasoned request, are obliged to provide this data at the request of the courts, preliminary investigation bodies, bodies of inquiry in cases in their production, in the manner and on the grounds provided for Russian legislation.

The documents that are provided to the authorities specified in this section and contain data that are a commercial secret must be labeled "Commercial secret", the owner of such data must be indicated.

In turn, the authorities specified in this section must ensure the protection of the confidentiality of the data provided to them by the owners of such data.

Trade secret and rights of its owner

The rights of the owner of information that is a commercial secret arise from the moment he establishes the "Commercial secret" regime with respect to such information.

The owner of the above information has the right:

Install, modify, cancel in writing trade secret regime in accordance with Federal law of July 29, 2004 N 98-FZ "On commercial secrets" and a civil contract;

Use information constituting a commercial secret for their own needs in a manner that does not contradict Russian legislation;

Allow or deny access to information that is a commercial secret, determine the procedure and conditions for access to it;

Require legal entities and individuals who have gained access to information that is a commercial secret, state authorities, other state bodies and local authorities to whom such information has been provided, to comply with the obligations to protect their confidentiality;

Demand from persons who have gained access to information that is a commercial secret, as a result of actions committed by accident or by mistake, to protect the confidentiality of such information;

Protect, in the manner prescribed by law, their rights in the event of disclosure, illegal receipt or illegal use by third parties of information in respect of which the owner has established the "Commercial secret" regime, including demanding compensation for losses caused in connection with the violation of his rights.

COMMERCIAL SECRET AND ITS PROTECTION

On the basis of Part 1 of Article 10 of the Federal Law "On Commercial Secrets", measures to protect the confidentiality of information taken by its owner should include the following:

1. determination of the list of information constituting a commercial secret;

2. restricting access to such information by establishing a procedure for handling it, as well as monitoring compliance with this procedure;

3. registration of persons who have gained access to information that is a commercial secret and (or) persons to whom such information has been provided or transferred;

4. regulation of relations on the use of such information by employees on the basis of employment contracts and contractors on the basis of civil law contracts;

5. application to material carriers that contain information constituting a commercial secret, or the inclusion in the requisites of documents containing such information, the stamp "Commercial secret" indicating the owner of such information.

In this case, the owners of legal entities must indicate the full name and location, owners of individual entrepreneurs - the surname, name, patronymic of a citizen who is individual entrepreneur, and place of residence.

It's important to know: the regime of commercial secrets is considered established after the owner of the information, which constitutes a commercial secret, takes the measures specified in paragraphs 1-5 of this section.

In addition to the measures specified in clauses 1-5 of this section, the owner of information that is a commercial secret is also entitled to use, if necessary, means and methods of technical protection of the confidentiality of such information, and other measures that do not contradict Russian legislation.

Protection of the confidentiality of information that is a trade secret is considered reasonably sufficient if:

• access to such information by any person is excluded without the consent of its owner;
• the possibility of its use by employees is ensured, as well as its transfer to counterparties without violating the commercial secret regime.

The commercial secret regime cannot be used for purposes that contradict the requirements of protecting the foundations of the constitutional order, morality, health, rights and legitimate interests of third parties, ensuring the country's defense and state security.

Trade secrets and their protection within the framework of labor relations

Trade secrets are subject to protection within the framework of an employment relationship. For this, the current legislation provides for a number of duties assigned to the employer and employee.

Obligations of the employer:

a) familiarize, against receipt, an employee whose access to data that is a trade secret of the employer (his counterparties) is necessary for the performance of his job duties with a list of such data;

b) to familiarize the employee, on receipt, with the trade secret regime established by the employer and with the envisaged measures of responsibility for its violation;

c) create an employee the necessary conditions to comply with the "Commercial secret" regime established by the employer.

An employee's access to trade secrets is carried out with his consent, unless it is provided for by his labor duties.

Obligations of the employee:

a) comply with the trade secret regime established by the employer;

b) not to disclose such data owned by the employer and his counterparties, as well as, without their consent, not to use this data for personal purposes during the entire duration of the above regime (including after the termination of the employment contract);

c) compensate the losses caused to the employer if the employee is guilty of disclosing confidential data that became known to him in connection with the performance of his job duties;

d) transfer to the employer upon termination or termination of the employment contract material media containing confidential data available to the employee.

The employer has the right to demand compensation for losses that have been caused to him by the disclosure of confidential data from a person who has gained access to such data in connection with the performance of his labor duties, but has terminated his employment relationship with the employer, if confidential information is disclosed during the period of validity of the trade secret regime.

The company may have what it considers a secret and does not want everyone around it to know. Dumplings dough recipe, number of clients, program code - whatever.

The company has the right to demand that any information be kept confidential. For violation - payment of compensation and dismissal. To make the claim legal, the company introduces a trade secret regime. An entire law is devoted to trade secrets, this is Federal Law 98.

Trade secrets work for employees and partners with whom the company has signed an agreement. And if there is no agreement, you can sign an NDA.

What does the trade secret regime give

Secret mode is not a defense against deliberate theft. If a competitor pays an employee for a customer base, he can still sell it, no matter if there is a trade secret or not.

The trade secret regime helps to agree that the information about the company is a secret and how not to leak it by mistake. It seems that this is all nonsense, but it happens in different ways:

• The employee is proud of the project and writes about it on Facebook, but it turns out that the company does not want to publicize the project. It turns out that the employee revealed the secret, although he did not want anything bad.
• Or maybe not write on social networks, but tell at the birthday party, and all the guests at once, and there may be fifty of them. Someone further down the chain will tell, and the story may reach a competitor or someone else who may interfere with the project.
• If the employee knows what is considered a secret and what cannot be done with it, he will not make stupid mistakes.

The company is compensated if an employee reveals a secret. Here's what you can get:

• compensation for damage that appeared due to the disclosure of secrets;
• up to a million rubles, a salary or other income for two years, if the employee divulged the secret to earn money, and not accidentally.

The company has the right only to request the amount, and how much it will receive after the proceedings is decided by the court. For this, the company justifies the amount of damage, and this is not always easy. Only actual damage is considered. If the company received less profit due to disclosure, this is a lost profit, it is not collected. There may be such a situation:

The HR officer sent her friends at work a table - who gets how much, and the table was distributed throughout the company. Some of the employees decided that his salary was undeservedly low and quit.

The company lost on the disclosure of salaries, but it is difficult to prove the damage. The employee will not bring new orders, but this is a future benefit, not damage immediately after the dismissal.

If, because of the dismissal, the tender failed and the company proved the connection between the disclosure of salaries and the dismissal, it would be possible to take the cost of the contract as compensation.

In addition to compensation, the company has the right to fire an employee, and the employee may receive a term.

Who is the mode for

Any company can introduce a trade secret regime, there are no restrictions under the law. The only limitation is the company's resources.

It is not enough to demand compensation for breach of secrecy. Most likely, the offender will not want to pay, so you will have to file a lawsuit and prove your case in court.

In order for the court to support the company with the claim, it must register the secret in accordance with all the rules. You will need a mountain of documents: regulations on trade secrets, a list of classified information; a description of who, in what case and when can use this information. That's not all.

In a conflict, the company will defend its innocence only with evidence, so a lot will have to be controlled. For example, what employees send to personal mail. Suddenly drawings, and this is prohibited. Or what time an employee enters a work computer and what is copied to a USB flash drive.

The court ruled that the dismissal for divulging a secret was lawful because the company collected evidence, the judgment on the Guarantor

Evrazholding dismissed an employee for violating trade secrets. An employee filed a lawsuit for illegal dismissal.

The essence of the dispute: someone logged into the system under the employee's account electronic trading and studied procurement proposals. The computer from which someone came in was in Moscow, and the employee was in another city.

The company decided that the employee gave the username and password for his account to someone else. And this is a direct violation of trade secrets.

The court accepted the company's evidence and confirmed the legality of the dismissal.

Collecting screenshots of illegal correspondence is also not enough. If we are talking about employees, it is necessary to conduct an official investigation, invite independent experts and a notary and all together draw up an act. You can get by with screenshots, but then there is a risk of losing the case.

The trade secret mode can be entered by if the company has expensive secrets, it is ready for bureaucracy and litigation in conflicts. It takes time, money and good humor.

If you do not formalize the secret

It happens like this: the company decided that it needed a trade secret, and began to draw up the documents. But there are a lot of documents, a lot of employees, and it was not possible to arrange everything. One of the employees did not sign that he knows about the trade secret and undertakes to keep it, the secret list does not contain the latest version of the CRM.

If there are not enough documents or they are inaccurately drawn up, the court may decide that the company does not have a trade secret regime. And since there is no regime, it means that no one has violated anything and there is nothing to take compensation for.

The company was unable to fire the personnel officer who spoke about the salary, the court case on the website of the Syktyvkar city court

The personnel officer of Syktyvkar Taxi learned that the company is changing the payment system for operators. It turned out that the more shifts, the lower the salary.

O new system she told the operator: first she sent a table with new salary, then on the phone explained how to watch it. The company found out about this and fired the personnel officer, and she sued for illegal dismissal.

Despite the witnesses, the company lost the lawsuit. It turned out that Syktyvkar Taxi had incorrectly executed documents on commercial secrets:

• did not write that the size of the salary is a trade secret;
• did not receive the signature of the personnel officer that she agrees not to disclose the trade secret and knows what it includes.

For the court, this means that the company does not have a trade secret regime and the personnel officer did not know that salaries should not be disclosed. There is nothing to dismiss.

Syktyvkar Taxi had to reinstate the personnel officer, cancel the dismissal and pay the salary for the time it was not working.

It is necessary to register a trade secret not only for employees, it will also be needed for disputes with partners: suppliers, advertising agencies, dealers. How trade secrets work for partners is a topic for a separate article. The main thing is to remember, if there is no secret for the employees, consider that there is no secret for the partners either.

Without a trade secret regime for employees, a partner has the right to say anything. It will be very difficult or impossible to challenge this right.

The company was unable to receive 10 million rubles for divulging secrets, a court case in the Card index of arbitration cases

Geostroy developed documentation for the reinforced concrete structure of the crushed ore warehouse for Pitergorproekt and was to receive fourteen million rubles.

The contractor did not receive the full amount and filed a lawsuit demanding payment of arrears and interest on arrears.

Pitergorproekt filed a counterclaim for disclosing trade secrets. His demand is ten million rubles.

According to Pitergorproekt, the contractor did not introduce a trade secret regime, did not include the documentation in the secret list, and did not protect the documentation from outsiders in any way.

The court decided as follows: Pitergorproekt should pay for the work, but Geostroy for violation of secrecy should not. The customer himself did not introduce a trade secret regime for this documentation, therefore, formally Geostroy did not violate anything.

Introducing a trade secret and not formalizing it properly is of little use. Trade secrets do not protect secrets, and without documents, compensation cannot be obtained. Either make it out properly, or do nothing.

If there is no time for bureaucracy and the desire to sue, it may be better to spend energy only on protecting secrets. Connect the CRM, close access for the flash drive, make a memo and tell what is a secret and where you can't talk about it.

What is considered a mystery

If a company decides to introduce a trade secret regime, the first step is to make a list of what is related to it.

It is necessary to describe everything. You think that the size of the seller's bonus is a secret, you need to write about it. If there is no such item in the list, then it is not a trade secret. An employee can talk about a salary to whoever he wants, ethical standards do not count.

Almost anything can be a secret. The main thing is that the secret meets the conditions:

• outsiders do not know secret information. The company published a promotional article three years ago describing the tariff. The description of the tariff cannot become a commercial secret;
• there is no free access to trade secrets. The company does not publish the program code on Habré and does not throw drawings into the trash can near the business center;
• the company did something to protect trade secrets. Actions are considered: provisions on trade secrets, closed ports for flash drives, blocking social networks on work computers. The summoning speech at the quarterly meeting does not count.

There are also exceptions to trade secrets - this is public information. Here's what employees can talk about:

• on information from constituent documents;
• the number of employees, wage arrears and social benefits, open vacancies. The company does not pay wages for six months - employees have the right to talk about it to whoever they want;
• offenses and punishments. If someone has been convicted, you can write about it on Facebook. It doesn't matter if it's a cleaning lady or a CEO;
• violations that lead to environmental pollution, danger to life and health of people. The company adds a potentially hazardous ingredient, the employee has the right to say so;
• conditions of privatization of state property;
• everything that the company is required to tell by law. For example, banks are required to publish financial statements. If the bank is doing badly, you can't keep employees silent about the report.

There are many examples of lists on the internet, and companies often use them. I do not recommend doing this: you can look at examples for inspiration, but make a list for yourself. Maybe for some, the research of the SMM is nonsense, but for someone it is the most valuable, so it should be included in the list.

Another problem with examples from the Internet is the general wording. For example, "information on the results of negotiations." This is a risky formulation, because everyone can understand it differently, and the company has no arguments in favor of its interpretation.

The more detailed the list, the more chances you have to prove your case in court, because it is clear what it is about. Compare the two lists:

List with general points:

• terms of contracts;
• processes used in production;
• company development plans;
• data related to negotiations with certain persons;
• financing.

List with specific items:

• results of surveys, studies, analytical reports employees and contractors. All reports are taken into account, including at monthly meetings;
• assessment of customers' opinions on the company's work using the NPS method;
• results of promotions for each point of sale, including daily;
• client's questionnaire and understanding of the task after the first conversation with the client.

A specific list takes longer than a general one. To make things go faster, you can interview employees and find out what their secret is.

After the survey, you will have a list, and it remains to check it. For example, the list contains the results of a study. If a competitor gets the results, will he make money on it? If so, include it in trade secrets.

How to work with a mystery

The next step after the list is to decide who has the right to own the trade secret, when to use the classified information, and how.

There are no requirements in the law for the description of work with a secret, write as you like. It is safer to describe specifically, so that in the event of a trial it would be obvious: this employee possessed the information, he could use it like this, or not. If the company is opposed to employees sending documents from work mail to personal, write:

"All employees with access to trade secrets are prohibited from sending information to any mail other than work."

Or “it is forbidden to transfer information to people without access to the secret. Including the staff of the company ”.

Dealing with a mystery depends on the specifics of the company, so there is no one-size-fits-all advice on how to describe it. But so that you do not forget something important, we suggest which points are worth describing:

• who has access to what information. The findirector has full access to all information, the marketer has no access to the calculation of premiums;
• what not to do with trade secrets for all employees. For example, print, send to a personal address or corporate chat, copy to a USB flash drive, take work laptops home;
• what can some employees do with trade secrets. The findirector can record everything and always on a flash drive, the marketer - only the documents of his department, everything else - with the written permission of the findirector;
• in which cases it is possible to transfer information and not break the rules. The manager has the right to transfer offer for the machine with price and documentation, if the client signs a nondisclosure agreement. It can be transferred only after the written permission of the General Director;
• how employees protect trade secrets. Employees lock the computer when they get up from the workplace; do not send information from work mail to personal; do not copy documents to a flash drive or disk; printed documents are stored in a bedside table under the key;
• how long to keep the secret after dismissal. The employer has the right to write any term, it may require five or ten years. If the employee signs, the deadline is legal. If there is no time limit in the employment contract or the regulation on trade secrets, the employee is required by law to keep the secret for three years.

If there are many employees and different access levels, it may be more convenient to make several options. For example, for marketers and accountants or for subordinates and managers. There can be at least ten such descriptions, there are no restrictions. In the description, you can not indicate a specific employee, but leave only the positions.

How to register a secret

The last step is to formalize the documents and make the secret official. To do this, you collect a list of secret information and a description of working with a secret into one document, give it to employees for signature, and edit the employment contract.

An order of what is considered a trade secret. In the order, write who signs it and attach a list. If the list changes, you will have to issue another order or order to change the order. The more papers, the more reliable.

Local normative act or a trade secret clause. The purpose of the document is to tell you how a secret works, who is supposed to keep it, and what counts as a secret. In it you write a secret list and describe the work.

The position can take five sheets or twenty-five and be called in a simple way "Working with trade secrets in the Spinning Wheel company". There are no requirements in the law.

The regulation comes into force only after the order for the entry into force of this regulation. Therefore, another order will be needed.

Employee signature. All employees with access to the secret must confirm that they know about its existence, the rules of work and are ready to be responsible for its safety. To do this, you need to collect signatures of employees. It is safer to receive a statement from each employee. The text can be like this:

I, Mashkina Maria Maryevna, purchasing manager at OOO Spinning, have read the “Regulations on commercial secrets”. I confirm that I understood what is considered a trade secret, the rules for working with it, my duties and responsibilities.

Amendments to the employment contract. The employment contract must contain a phrase stating that employees are required to comply with the requirements for trade secrets. The text can be like this:

The employee is obliged to comply with the rules for working with confidential information and commercial secrets, not to disclose commercial secrets that he learned while performing his job duties.

The employee is responsible for the disclosure of trade secrets within the limits of the law.

Logbook. It is necessary to record in it which employee, when and why used something from a commercial secret. The journal can be kept by one person and everyone can be recorded. This can be done by the program or each employee records himself. The magazine does not help the company to work faster or more accurately, but it helps out in litigation.

You can make a magazine yourself or buy a ready-made one:

"Commercial secret" stamp for all secret documents, it does not matter if it is a printed contract, a file on a computer or records in the CRM. If there is no mark, the court may decide that the employee did not understand that this particular document was considered secret.

To introduce a trade secret regime, you need to complete the documents, monitor employees and be ready for trial. If the company is not ready for this, it may not be worth starting a process, but spending energy on protecting secrets. How to do it - we will find out from entrepreneurs and tell you.

In this article, we will look at what a trade secret is, how to draw up a provision on a trade secret, as well as what governs the law on a trade secret and what consequences its disclosure can lead to. Read more about this and how to build effective protection of trade secrets.

What is a trade secret

A trade secret is information about a company that is associated with production processes, management, technology, finance and other activities of the organization, the disclosure of which may harm the interests of the company's management. Protected information provides a number of advantages for a company to effectively compete. It should be noted that the category of commercial secrets does not include information, the concealment of which may lead to harm to society.

The list of information related to commercial secrets, in accordance with the Law of the Russian Federation "On Enterprises and Entrepreneurship", is determined directly by the head of the organization. To transfer information to the protected category, the issuance of an order by the head of the company with an indication of the list of information constituting a trade secret is required.

Compiling a list of information that cannot be classified as a commercial secret has certain difficulties, because in domestic practice, a clear method has not yet been developed for classifying information as a commercial secret. Each enterprise has different information classified.

The following data are classified as commercial secrets:

1) Scientific and technical information- includes discoveries, ideas, patents, know-how, new methods of organizing production, licenses, plans for the introduction of new technologies and other types of products, software, analysis of product competitiveness, passwords for access to confidential data;

2) Production information. Including data on production methods, technologies, diagrams, drawings, design documents, product recipes, information on materials, time to market, production and investment plans;

3) Financial data - the cost of goods, the amount of profit, trading, banking operations, the mechanism of pricing, the company's solvency;

4) Business information- conditions and nature of the concluded contracts, data on suppliers, plans for holding promotions, information on commercial correspondence, business negotiations.

What is not a trade secret

However, not all data that meets the specified criteria can be considered a trade secret. The state has the right to control the activities of enterprises. For this purpose, at the legislative level, a list of data has been established that cannot be considered a commercial secret.

• constituent documents and Articles of Association;
• documents for the right to conduct business;
• documents on the company's solvency;
• data on the composition, number of employees, their working conditions, wages, availability of vacancies in the company;
• documentation confirming the payment of taxes and mandatory payments;
• participation data officials companies in small businesses, cooperatives, joint stock companies, partnerships, associations and other organizations in the field of entrepreneurial activity;
• data on environmental pollution, non-compliance safe environment labor, violation of the norms of antimonopoly legislation, the sale of products that cause harm to the population, other violations of the current legislation, indicating the amount of damage caused in relevant cases.

This information is provided by the company at the first request from legal entities and officials.

Who has the right to know trade secrets

The main subjects of the right to trade secrets are the owners of trade secrets and legal successors.

The assignees are de facto either legal entities who, under the terms of an agreement or other legal basis, gain access to information constituting a commercial secret.

Trade secret holders are legal (commercial and non-profit organizations) and individuals(regardless of citizenship) who are engaged in entrepreneurial activity with a monopoly on data related to trade secrets.

The owner of a trade secret has the right to:

- independently determine the criteria by which the information received will be classified as a commercial secret, a set of measures to ensure the regime of a commercial secret, its validity period, the procedure for access, the choice and use of methods and means of protection, storage of data transmission related to commercial secrets;

- establish, cancel and change the trade secret regime (if it does not violate the terms of the contract);

- to demand to ensure the regime of commercial secrets from persons who have gained access to information from the category of commercial secrets;

- admit or terminate admission for a person who is labor relations(employee) with his consent to trade secrets on a contractual basis.

There is also the concept of "carrier of commercial secrets" - this is a person who is aware of the company's trade secrets (managers or performers admitted to trade secrets), as well as products, documents, items, materials, substances, confidant of trade secrets. A bearer of a trade secret is a person who, according to an agreement, official position or other legal basis, has access to the secret of another person.

How to draw up a trade secret agreement

Access to and distribution of classified information (trade secrets) should be protected in writing by all legal means. Only then will you be able to demand non-disclosure of classified data from employees and contractors, and in case of violation of this requirement - compensation and bringing the perpetrators to justice (up to criminal).

Download a sample trade secret agreement prepared by the editorial staff of Commercial Director magazine.

Who needs a trade secret

When stealing trade secrets, cybercriminals usually pursue 3 goals:

1. Obtaining the necessary information in a volume that is sufficient for a successful competition;
2. Damage to a competitor by destroying his valuable information;
3. Making changes to the information flows of a competitor company in pursuit of their goals and interests.

Information leakage is possible for several reasons:

1. The imperfect state of the organization of management at the enterprise, shortcomings in the selection, equipment and training of security specialists.
2. Shortcomings in the organization of ensuring the secrecy regime, the facts of unsatisfactory registration and reporting, regular inspections and inventories are not carried out, insufficient control over the implementation of instructions and rules, low funding for work related to the secrecy regime.

Among the most probable channels for the leakage of trade secrets, foreign experts include the following:

- communication channels, including telephone, radio communication, telegraph, Internet and correspondence;

- the human factor - when hiring and firing company employees;

– material flows- include transportation of classified items, documents, delivery of special mail;

– cooperative activity with other organizations;

- introduction of their own people into the personnel of a competing company;

- poaching the valuable personnel of competitors in order to obtain their knowledge and information;

- data to a computer: copying program information from media, reading printouts, stealing media, etc.

Additional Information

According to the American publication "Chemical engineering", there is a list of 16 sources that are actively used to obtain confidential secrets:

• collection and analysis of information in the media, including official documents- in particular, the study of court reports;
• information disseminated by employees of competing companies;
• reports of consultants, stock documents, financial documents and reports from brokers, exhibition brochures, exhibits, reports of traveling salesmen, brochures, etc.
• studying the products of competing companies, obtaining data during conversations with competing companies (without violating the law);
• covert surveillance;
• disguised polls, attempts to "fish out" information from employees of competing companies in the framework of scientific and technical congresses;
• false negotiations with a competitor about the purchase of a license;
• hiring conversations with competitors' employees (although it is not planned to employ this specialist);
• bribery of an employee of a competing company, or persons involved in its supply;
• hiring an employee of a competing company in order to obtain the necessary information;
• eavesdropping on negotiations in the company;
• using an agent to get information from a competitor's payroll;
• eavesdropping on telephone conversations;
• interception of messages by telegraph;
• extortion, blackmail;
• theft of samples, drawings and documents.

Block PC ports and devices

Alexey Raevsky, general manager by SecurIT, Moscow

Data can be lost for various reasons - in the case of theft of computer equipment, backup media, direct access to computers corporate network, theft of documents by company employees, etc.

Therefore, it is necessary to provide for its protection of trade secrets for each threat.

How to protect a trade secret

Domestic entrepreneurs use a number of basic measures to protect data:

Legislative protection - observance of the entrepreneur's rights to confidential data, enshrined in Russian law. In case of violation of the rights of an entrepreneur, he will file a complaint with the relevant authorities (prosecutor's office, FSB, Ministry of Internal Affairs, court) in order to restore his violated rights, compensate for damage, etc.

Physical protection - organization of access control at the enterprise, security, introduction of special cards for outsiders, work with lockable cabinets, safes, etc.

Organizational protection: 1. Creation of a service or introduction of a position responsible for classifying information as a commercial secret, following the rules for access and use of information; 2. Compliance with the rules for the use of information, a permanently operating system for monitoring compliance with the rules of access, use of information; 3. Separation of information according to the degree of confidentiality. Admission to trade secrets is organized only in accordance with the authorized position or with the permission of the company's management.

Technical protection - means of control and protection are used, including signaling devices, microphones, video cameras, identification means, software protection of computer systems from unauthorized access attempts.

Work with personnel - active work personnel services recruitment, training, validation, promotion, placement companies, stimulation and promotion of personnel. It is necessary to regularly instruct employees on the importance of following the rules for using commercial secret data, conveying information about the responsibility for the violation.

Step-by-step instructions for protecting trade secrets

Step 1. Determine what is a trade secret in your company

Before introducing a trade secret regime in your enterprise, you need to determine what can be regarded as it in your company. In this case, one must proceed from the definition of a commercial secret. The list of business data should be determined by the CEO together with a lawyer.

But for a reasonable recognition of this information as a commercial secret, it is necessary to comply with a number of criteria:

- legal origin (completely legitimate receipt);

- have commercial value;

- the owner of the information takes measures to protect trade secrets;

- there is no free access to data on legal grounds.

Shred confidential information into pieces

Anton Larin, security expert, head of security projects at ExDev, Moscow; Doctor of Law

- limiting the general range of persons who are allowed to work with this information;

- analysis of the organization's workflow construction;

- fragmentation of information on the block; each employee should know exactly the amount of information required to complete their tasks.

Step 2. Draw up a statement of confidential information

The organization's legal service should be tasked with drafting a confidential information statement. In this document, it is necessary to indicate a list of information related to trade secrets with the need to indicate an obligation not to disclose this information with a reminder of responsibility, the procedure for using sanctions in case of violation of this obligation. Each employee of the company must be informed about this trade secret against signature.

Step 3. Enter the accounting of employees who have access to trade secrets

The personnel department should be engaged in drawing up an order on the persons authorized to access the data of commercial secrets. The corresponding order must be communicated to all employees specified in it.

Step 4. Enter a trade secret clause in the employment contract

It is necessary to indicate in the employment contracts a clause on non-disclosure of commercial secrets. At the same time, it is worth working in parallel to improve loyalty of company personnel.

Employees can sell your trade secret

Vladimir Kiselev, managing partner of the consulting company ExDev, Moscow; Director of the International Business School of the Moscow Chamber of Commerce and Industry

Employees are becoming the main channel of data leakage. They can "leak" information by accident or for money. Therefore, you need to take into account the principles of creating effective system protection of confidential information:

Increased staff loyalty. Such a system of motivation should be organized, with appropriate norms corporate behavior to achieve employee loyalty to the company, motivating them not only in personal but also corporate success. Personnel loyalty becomes an important condition not only for the security of trade secrets, but also for the overall success of the enterprise.

It is necessary to explain to the staff what the protection of trade secrets is, what degree of responsibility is established upon disclosure. These provisions are governed by local documents and labor contracts, having familiarized each employee against signature. At the same time, it is necessary to clearly state what is the company's trade secret.

Step 5. Explain to employees about the essence of trade secrets

It is necessary to clearly convey to employees what is a trade secret, inform about the responsibility for disclosure.

Step 6. Enter into a non-disclosure agreement with employees.

An appropriate agreement on confidentiality, non-disclosure of information is concluded with its business partners.

Step 7. Put confidential information on the label "Secret"

All documents that contain confidential information must be classified as "Commercial secret" or "Official secret".

Step 8. Assign privacy officers

An employee will not be held liable if the confidentiality of information has not been duly explained to him.

Create guidelines for the protection of trade secrets

Vladimir Filchenko, General Director of LLC “Center for Analysis of Investment Risks“ Alternative Consulting ”, Moscow; retired colonel of the Ministry of Internal Affairs

Measures to preserve trade secrets can be internal or external. Also, sometimes an insurance measure is highlighted - insurance of commercial secrets against cases of disclosure is issued. However, so far such an experience is almost never found in Russia. In domestic practice, serious difficulties are also noted with the calculation of the specific cost of a trade secret.

• Trade secret agreement: how to avoid mistakes

While everything is clear with internal measures, external ones deserve special attention - when working with business partners. It is necessary, together with the counterparty, to determine the content, nature of confidential information, mutual obligations of the party to ensure the safety of information. It is necessary that legal service the "Instruction on the protection of confidential information when working with foreign partners" was developed. However, it is worth remembering the importance of the compliance of the confidentiality conditions with foreign partners with the legislation in the country of the conclusion of the agreement, unless another requirement is established by the provisions of interstate agreements.

What threatens for the disclosure of commercial secrets

In the event of disclosure of commercial information, you can receive compensation for your lost profits.

Liability measures:

1. Unlawful disclosure of commercial secrets to which a person had access:

- a fine of up to 120 thousand rubles;

- a fine in the amount of salary (or other income) for a period of up to one year. Will be deprived of the right to work in certain positions or conduct certain activities for up to three years;

- imprisonment for up to three years.

2. When disclosing classified information that was illegally obtained:

- shraf 80 thousand rubles;

- fine in the amount of wages(or other income) for a period of one to six months;

- imprisonment for up to two years.

• Pricing Methods: Which Are Really Effective

3. Disclosure of trade secrets, which led to major damage to the enterprise:

- a fine of up to 200 thousand rubles;

- a fine in the amount of wages (or other income) for a period of up to 18 months. Deprivation of an employee of the right to work in a certain position for a period of three years;

- imprisonment for up to five years.

4. Punishment in case of disclosure of classified data, which led to grave consequences - imprisonment for up to 10 years. Severe consequences are the bankruptcy of the enterprise, the ruin of the entrepreneur, the deterioration financial condition companies, etc.

The employee is not allowed to install any program without the permission of the IT department

Alexander Sparre, chairman of the board of the group of companies "AutoSpecCentre", Moscow

In our company, it is required to sign not only an employment contract, but also obligations on non-disclosure and protection of trade secrets. If third parties are trying to obtain commercial information, the employee must inform the manager about it. A ban has been introduced for self-installation of any programs without the permission of the IT department specialists. There are also some restrictions on the use of information systems.

• Current assets of the enterprise: concept, management and analysis

The employee is informed that if one of the points of this obligation is not met, he may not only be dismissed, but also be brought to criminal, administrative, civil and other liability options in accordance with the law.

Companies and departments within our group have established job descriptions and regulations governing the procedure for working with databases, customer bases, with the regulation of relationships with partners and the public.

If a trade secret was issued by an employee of the company

An employee is required to keep a trade secret for the entire duration of the employment contract and for 3 years from the date of dismissal. If an employee for the deadline violates the requirements, the company can take the following steps:

Terminating the employment contract is the prerogative of the CEO of the company. he should also determine if cooperation with this employee is allowed in the future.

Recovery of damage from an employee. Although this step is quite difficult. Indeed, according to article 238 of the Labor Code of the Russian Federation, it is possible to recover only actual damage from an employee, it is very difficult to compensate for lost profits.

If a business partner has issued a trade secret

Situations may arise when a company, according to its contracts, is forced to transfer commercial information business partners... A similar situation is also possible within the framework of audits, court proceedings, etc.

In any situations where third parties have access to confidential information, they are responsible for the non-proliferation of data (if they were informed that this data is a trade secret). If this information is disclosed by third parties, you can compensate for the damage in court. Including compensation for direct damage or loss of profits.

It is possible to file a claim for the return of unjust enrichment with the recovery of the amount that the partner received for the transfer of this information.

However, the court will have to prove the amount of damage to the company. Therefore, the lawyer will have to carefully develop all the documents confirming the specified amount of compensation.

Information about authors and companies

Vladimir Filchenko, General Director of LLC "Center for Analysis of Investment Risks" Alternative Consulting ", Moscow; retired colonel of the Ministry of Internal Affairs. The main activity of the company is marketing research and identification public opinion... The organization has one subsidiary.

Alexey Raevsky, CEO of SecurIT, Moscow. SecurIT specializes in the development of information security systems, their distribution and implementation. The company's employees have extensive experience in the field information security... The main products of the company: information security systems for personal computers, servers and backups, user authentication systems in networks and applications.

Anton Larin, security expert, head of security projects at ExDev, Moscow; Doctor of Legal Sciences. Exdev Consulting is a consulting company providing services in the implementation and maintenance of SAP solutions. Experience in the implementation of ERP systems in such industries as the production of auto components, the financial sector, retail, production of consumer goods, helps to implement projects with high quality and on time.

Alexander Sparre, chairman of the board of the group of companies "AutoSpecCentre", Moscow. Group of companies AutoSpecCenter - official dealer Porsche, Audi, Infiniti, Nissan, Skoda and Citroen have been operating in the auto retail market since 1998. Currently, the AutoSpecCentre Group of Companies includes ten dealerships in Moscow and the Moscow region.

For effective work in a competitive environment, the management of some companies resorts to a trade secret regime. Non-disclosure of technical, production, financial and economic information allows its owner to receive commercial benefits.

This article contains answers to basic questions related to the protection of trade secrets:

what types of trade secrets exist;
how to establish a trade secret regime in an organization and oblige employees to comply with it;
why is a trade secret nondisclosure form required;
whether it is necessary to mark documents constituting a trade secret.

Definition of trade secrets

The concept of "trade secret" can mean both a confidentiality regime introduced in order to obtain benefits from the possession of certain information, and the information itself, which constitutes a commercial value. So, this category can include any information that has real or potential commercial value for its owner: technological developments and trade secrets, financial statements, scientific and technical projects and more. By blocking access to important information to third parties, you can get real benefits - to maintain or improve the position in the market for goods or services, avoid unwanted expenses or increase income, etc.

When establishing a trade secret regime, the employer must understand that not all information can receive such a status.

According to current legislation, the owner of information has the right to protection from its use by third parties, provided that:

there is no free access to it on legal grounds;
adequate measures have been taken to safeguard its confidentiality;
it has proven real or potential commercial value due to unknown third parties.

Most often, commercial secrets are made up of three types of information:

commercial, organizational and managerial and production information (including various know-how).

Confidential manufacturing information is considered to be information about the development and application. software and various technical inventions, manufacturing methods certain types and product brands (from confectionery before building mixtures), methods and methods of application that are not subject to patent protection technological processes and devices.

Organizational and technical data protected by their legal owner may relate to features staff enterprise, distribution and content of responsibilities within the team, structure and management methods, plans for reorganization or development of production. Any information that answers questions about planning and making a profit is considered commercial information requiring confidentiality - results marketing research, knowledge in the field of implementation of services or products, data on banking relationships, debts, investments and loans, customer lists, information on concluded and planned contracts, business correspondence.

Documents containing commercial secrets are both accounting reports and lists of proposed objects commercial activities, and proposals for the conclusion of contracts, and forms of payment. In order to succeed and protect their competitive position, most companies have to keep the above information secret from third parties.

Protection of trade secrets

The definition of a trade secret implies responsibility for its deliberate or careless disclosure, as a result of which confidential information becomes known to third parties without the consent of its owner.

The law provides for disciplinary, administrative, civil and criminal liability for the disclosure of commercial secrets. Also provided material liability occurring independently of other forms of responsibility. But in order to prove in court the fact of disclosing confidential information, you must first ensure the conditions for compliance with the relevant regime in the organization.

In practice, the protection of trade secrets is usually organized as follows:

An appropriate local act is developed and approved (for example, "Regulations on commercial secrets"), which determines the list of confidential information. Then the circle of workers who have access to it is outlined. Each employee of the organization who gains access to trade secrets must familiarize themselves with the content of the Regulations.

To ensure the safety of confidential information, documents of trade secrets and electronic media containing information important to the company are marked with a special stamp. This simple measure will allow in the future to avoid accidental disclosure of trade secrets by employees who mistakenly gained access to information.

The regulation on commercial secrets should not contradict the norms of the current legislation:

it is impossible to include in the list of confidential information types of information that cannot be considered as such. It is advisable to supplement the Regulations with instructions for working with documents constituting a commercial secret, and an acquaintance sheet, in which each employee must certify his consent to comply with the nondisclosure regime.

In the event of a leak of confidential information, the employer will be able to conduct an internal investigation and bring the perpetrators to justice.