UK implementation of the Trade Secrets Directive

Abstract

The EU Trade Secrets Directive 2016/943 was adopted on 8 June 2016 and entered into force on 5 July 2016. Member States were obliged to implement the Directive by 9 June 2018 and despite the UK having given formal notification of its withdrawal from the EU on 29 March 2017, and with Brexit imminent, the UK chose to implement its extant obligations by the deadline. This was done in the form of the Trade Secrets (Enforcement, etc) Regulations 2018 (‘Regulations’), in reliance on section 2 of the European Communities Act 1972. This paper will examine UK law before and after implementation of the Directive. Part 2 discusses UK law as it stood prior to implementation, setting out the judicially developed action for breach of confidence. Part 3 then turns to examine the background, structure and scope of the Regulations. It shows that the Regulations add definitions of “trade secret”, “trade secret holder”, “infringer” and “infringing goods” and explicitly incorporate elements of the enforcement and remedies provisions in the Directive. However, what counts as “unlawful” acquisition, use or disclosure remains defined according to the existing UK law on breach of confidence and there has been no attempt explicitly to incorporate the provisions on lawful acquisition, use or disclosure.