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Reform of trade secrets legislation in Finland
The trade secrets legislation in Finland is currently under construction. The Ministry of Economic Affairs and Employment received a report 18.10.2017 from the working party on the national implementation of the Trade Secrets Directive ((EU) 2016/943, the “Directive”). The report proposes the enactment of a new act on trade secrets, the Trade Secrets Act (fin. liikesalaisuuslaki), which would include provisions on the definition of a trade secret and on the unlawful acquisition and use of trade secrets. In addition, the aim is to improve the legal remedies of the trade secret holder by, inter alia, extending the holder’s right for compensations.
The proposed definition of a trade secret states, that a trade secret means information that is not generally known or readily accessible and that has commercial value because of its secrecy. Furthermore, in order such information to be a trade secret, the person lawfully in control of the information must have taken reasonable measures to keep the information secret.
The proposed Act also sets forth the permissible ways to obtain trade secrets, such as situations where the trade secret has been independently created or invented. For example, it would be permissible to acquire the trade secret by legally obtaining a product and figuring out the trade secret by testing or examining the product. The basic idea behind the legislation is that acquiring a trade secret in a way that is not contrary to the fair business practices shall be considered permissible. Moreover, disclosing a trade secret, for example, due to a severe threat to health, could be seen as permissible.
There are some remarkable improvements on the remedies of the trade secret holder. In future, the Court could, for example, order a product that infringes a trade secrect to be withdrawn from the markets. The report also proposes that the new law should include a provision regarding damages and that the compensation for damages would cover the total loss in full when the infringement has been deliberate or negligent. The aim is that after the trade secrect holder that has suffered damage has been compensated, the holder’s financial situation would be the same as it was before the infringement.
As stated above, the report contains several changes to the current legislation. The proposed changes are expected to enter into force at the latest on 9 June 2018, which is the deadline for the implementation of the Directive.
Companies can enchance the protection of their trade secrets by contractual arrangements. This is recommendable for most companies, since the protection under the current legislation is defective. The new legislation will improve the protection but regardless of this progress, NDAs and non-disclousure clauses are still needed in commercial and employment contracts.
Tommi Härmä, counsel
Onni Rostila, lawyer