Companies or individuals who are in possession of certain confidential information can protect this information in two different, but largely overlapping legal regimes.

I The legal regime for the protection of trade secrets

In order for certain information and data to be protected on the basis of legal regulations, it is necessary that certain information or information falls under the legal definition of the term “trade secret”.

A trade secret means information that meets three cumulative conditions: a) that it is a secret because it is not generally known or easily accessible to persons who, in the course of their activities, usually come into contact with this type of information; b) that due to its secrecy, it has a commercial value; c) that the trade secret owner has taken reasonable measures to protect the secrecy of such information.

In addition to the above, there is also the question of which persons have a legal obligation to keep trade secrets. Without any doubt, these are persons who have special duties towards the company, as well as persons who legally come into possession of information that represents a business secret.

In the event of illegal disclosure of information representing a trade secret, the legal holder of a trade secret has the right to file a lawsuit with a request to determine the violation of the integrity of the trade secret, as well as a request for a series of actions aimed at preventing further misuse of information with the character of a trade secret, and eliminating consequences arising from the disclosure of such information.

II Regime of protection of confidential information on the basis of NDA (Non-Disclosure Agreement)

Data confidentiality agreements are most often concluded for two reasons, which very often run in parallel.

The first reason for concluding these contracts involves taking measures to fulfill the obligations of the holder of confidential information that represent a trade secret, in order to take rational measures to protect the secrecy of the information, in which sense the persons who have the obligation to protect the trade secret are specified, which makes it easier to prove the existence and the content of their obligation to protect trade secrets.

The second reason includes situations in which important information is disclosed that cannot be considered a trade secret by the letter of the law, but which has a certain value for its holder, or in respect of which information there is doubt as to whether it can be characterized as a trade secret, and consequently and protected by the legal protection regime. In such cases, the confidentiality agreement defines the specific information whose publication is not allowed, along with the definition of penal provisions in case of violation of such prohibition. Mechanisms of protection against the violation of the obligation to protect confidential information from the NDA contract are most often reflected in prescribing the obligation to compensate for material or non-material damage due to the publication of confidential information or predicting the obligation to pay a contractual penalty.

In the end, the key thing when concluding a Non-Disclosure Agreement is the precise and accurate definition of the information that is protected by the agreement. On the one hand, no information that is not described in an adequate and sufficiently precise manner in the contract in the event of a legal dispute will not receive judicial protection. While on the other hand, even a too extensive circle of information that is protected by the contract will not also receive court protection, because simply some information that falls within the domain of regular business and general information cannot be characterized as confidential.