Legal protection of business secrets
After several attempts, and following EU Directive 2016/943, the legal protection of trade secrets was established by law n°2018-670 of July 30, 2018 supplemented by decree n°2018-1126 of December 11 2018 (creating new articles L 151-1 et seq., R 151-1 et seq. in the Commercial Code, amended by the laws of March 23 and May 22, 2019: see Attachment).
Like any legislative clarification, it sets rules whose application will give rise to discussions and case law... Thus, information is protected under business secrecy if (art. L151-1 of the Commercial Code):
- It is not, in itself or in the exact configuration and assembly of its elements, generally known or easily accessible to people familiar with this type of information because of their sector of activity; [In other words, it is unpublished and generally emanates from its alleged holder.]
- It has commercial value, actual or potential, because of its secrecy; [In other words, keeping it secret gives it value.]
- It is the subject on the part of its legitimate holder of reasonable protective measures, taking into account the circumstances, to keep it secret. [In other words, it is protected.]
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