Drawing the Line Between a Trade Secret and the Skill of an Employee

Abstract

Chapter 30, Section 5 of the Finnish Criminal Code, prohibits, inter alia, an employee from unlawfully using or disclosing a trade secret to another person during the course of employment. The prohibition remains also in force for two years after the employment has ended. However, the use of one's professional skill is excluded from the prohibition. This article addresses the ambiguous distinction between a skill and a trade secret. Following a legislative change concerning non-compete agreements, the significance of the protection of trade secrets under criminal law has increased and the ambiguity identified in case law has become even more important to resolve. The Supreme Court of Finland has not issued a precedent concerning the matter. The article analyses Court of Appeal rulings with legal dogmatics in order to reduce the ambiguity surrounding the topic. Forty-three rulings from various Courts of Appeal have been reviewed as groundwork for the article. In addition, the aim is to use legal comparison to examine foreign jurisprudence surrounding the topic. The article critically examines a so-called primary rule of interpretation, according to which information exported in stored form is in principle a trade secret. This premise is outdated and problematic and should not be used as the core premise of the evaluation. Instead, the evaluation should focus on an objective analysis of the information itself. The primary starting point in drawing the line between a trade secret and skill should be the employee's experience and ability to independently produce the information claimed to be a trade secret. It would also be reasonable to make the confidentiality criterion for trade secrets stricter by requiring employers to place more emphasis on the confidentiality of the information.