OGH: Trade Secrets Require Confidentiality Measures

Jan 24, 2025 Benn-Ibler Rechtsanwälte

The mere desire to keep something secret is not enough to assume that it is a secret requiring legal protection. Rather, there must be appropriate measures to maintain confidentiality on the part of the person in possession of the information.

The plaintiff, a provider of funds and financial data, had imposed a confidentiality obligation on a former senior employee in order to protect the company’s trade secrets. During 2018, the former employee also signed a non-disclosure agreement to keep the claimant’s trade secrets strictly confidential. However, it was discovered that the employee still had access to and was able to view the confidential data months after she left the company in March 2021.

The court of appeal dismissed an application for preservation of evidence in connection with the alleged breach of trade secrets on the grounds, among other things, that the plaintiff had not taken appropriate confidentiality measures, which are essential for something to be considered a confidential issue.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) upheld this decision, citing Section 26b of the Austrian Unfair Competition Act (Bundesgesetz gegen den unlauteren Wettbewerb, UWG), which states that trade secrets must be (1) secret and therefore not generally known or easily accessible, and (2) have a commercial value. In addition, trade secrets must be protected by means of appropriate confidentiality measures.

In the specific case at hand, the plaintiff had failed to take such security measures. In particular, the employee’s access to the company’s IT system should have been blocked without delay after her leaving the company.

Withdrawing access to confidential information is a basic security measure expected of a company to ensure confidentiality, the OGH stated. It would have been the responsibility of the plaintiff to take reasonable measures to protect trade secrets from unauthorised access

OGH 4 Ob 195/24s (19 November 2024)