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Directive (EU) 2016/943

Will Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure which came into force on 5th July 2016 have any impact on the common law action of breach of confidence?

I am asked to address the following issues in this opinion:

  1. The common law of breach of confidence  
  2. Will the Directive (EC) 2016/943 have an effect on it
  3. The common law in Double glazing Glasgow


1.0 The Directive aims at to  establishing a minimum standard of protection of trade secrets in the European Union. This minimum standard protection which is currently inexistent  due because of  to the prevailing disparities between national laws regarding  on the definition of trade secrets. The scope of  each jurisdiction’s their  legal  protection varies; between some believe that necessity of  the means of obtaining compensation for  damage caused by loss of trade secrets should be prioritised, others favour devising  and other means of reaction protecting companies against illicit access to their to companies’ confidential information. The impact of the Directive on the law of breach of confidence is arguably …….

2.0 Definition of a trade secret under Directive (EU) 2016/943

2.1 The Directive’s definition of a trade secret copies, word-for-word, Article 39(2) of TRIPS which sets out three cumulative requirements:

  1. the information must be “secret”, i.e. not generally known or readily accessible;
  2. the information must have commercial value because of its secrecy/confidentiality;
  3. the trade secret holder should have taken reasonable steps to keep the information a secret.

Categorized as: Directive (EU) 2016/943

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