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- Le secret des affaires, défini par l’article L.151-1 du Code de commerce et la loi du 30 juillet 2018, protège toute donnée non publique, à forte valeur économique et entourée de précautions suffisantes.
- Il constitue un actif immatériel stratégique, au même titre qu’un brevet, permettant de préserver la compétitivité, la réputation et la confiance des partenaires.
- Sa préservation repose sur des mesures internes (classification, sécurité numérique, sensibilisation des employés) et des dispositions contractuelles (NDA, clauses spécifiques).
- En cas de violation, les juridictions peuvent ordonner l’interdiction d’usage, la saisie, la destruction des supports et le versement de dommages-intérêts, complétés par des sanctions pénales.
- Le secret peut être intégré dans une stratégie économique globale, en arbitrant entre brevet et confidentialité, et en sécurisant chaque projet grâce à l’appui de conseillers spécialisés comme Goldwin Avocats.
In a world where competition is intensifying and industrial espionage has become a reality, business secrets are one of a company’s most strategic assets. Behind every confidential piece of data, every commercial contract, every financial project or technical process lies a protected object that can provide a decisive economic advantage.
The 2016 European directive and the French law of 30 July 2018 on the protection of business secrets impose contractual measures, confidentiality clauses, and civil or commercial procedures to punish any unlawful use or disclosure. Article L.151-1 of the French Commercial Code precisely defines confidentiality and the conditions under which it may be obtained, enabling a legitimate holder to defend its rights. This legal tool is now a genuine strategic principle for securing sensitive information.
Goldwin Avocats, a recognised firm specialising in business and commerciallaw, advises managers and injured parties on implementing an effective protection strategy.
Key points to remember :
- Business secrecy, defined by Article L.151-1 of the French Commercial Code and the Law of 30 July 2018, protects any non-public data with high economic value and surrounded by sufficient precautions.
- It constitutes a strategic intangible asset, in the same way as a patent, making it possible to preserve competitiveness, reputation and the trust of partners.
- Its preservation depends on internal measures (classification, digital security, employee awareness) and contractual provisions (NDA, specific clauses).
- In the event of a breach, the courts can order aban on use, seizure, destruction of the media and payment of damages, in addition to criminal sanctions.
- Secrecy can be integrated into a global economic strategy, by arbitrating between patent and confidentiality, and by securing each project with thesupport of specialist advisers such as Goldwin Avocats.
Definition and general framework of business secrecy
What is a business secret?
The legal definition of a business secret is set out in Article L.151-1 of the French Commercial Code.
It concerns :
- any confidential information that is not publicly known,
- which has economic value by virtue of its secrecy,
- and which is the subject of reasonable protection measures put in place by its legitimate holder.
This system, which stems from a European directive, enables companies to preserve their strategic assets and protect themselves against the illicit disclosure orunfair use of their data.
Here are a few concrete examples to illustrate the concept of secrecy:
- a customer database,
- a commercial strategy or development plan,
- technical know-how (processes, formulas, in-house software),
- or unpublished pricing conditions.
The legal framework and the 2018 law
Law 2018-670 of 30 July 2018, on the protection of business secrecy, transposes Directive (EU) 2016/943 of the European Parliament.
- It specifies the criteria for protection.
- It defines remedies in the event ofunlawful disclosure oruse.
- It provides for exceptions (whistleblowers, public interest).
Why protecting secrecy is essential for companies
Preventing disclosure and illicit use
One leak of protected information can be enough to compromise an entire business model. The disclosure of a customer file, technical know-how or a manufacturing process would enable a competitor to reproduce this data and gain an unfair advantage on the market. In this type of situation, the injured party can take the matter to civil or commercial court to claim compensation and have emergency measures ordered.
In France, the law on trade secrets, transposing the European Union directive, was designed to provide a solid legal framework for businesses. It sets out the conditions for maintaining the secrecy of confidential information, while protecting the freedom of journalists and employees to report breaches of secrecy in the public interest.
Can a business secret be used as evidence before a judge?
Yes, but only if it is essential for the defence of an individual. The judge may authorise the disclosure of confidential information provided that the breach of secrecy remains proportionate and strictly limited to the purpose of the proceedings, in compliance with European law.
Economic and commercial impact of trade secrets
A trade secret is a genuine intangible intellectual property right. Its economic value depends directly on its confidentiality and the ability of its legitimate holder to preserve it. Unlike patents, trade secrets are not time-limited: as long as the company manages to keep the information secret, it remains protected.
There are many tangible benefits:
- Competitiveness and know-how: protecting manufacturing processes or internal algorithms means staying one step ahead in your sector.
- Value creation : when raising funds or planning a sale, secrets increase the company’s valuation.
- Confidence of partners and investors: proving that you have mastered the protection of your know-how enhances your credibility with members of the international market and the European Union.
- Financial flexibility: unlike patents, which require the payment of registration fees, business secrets are maintained by internal measures (clauses in employment contracts, access restrictions, confidentiality obligations).
- Reputation and image: avoiding leaks of strategic information preserves customer confidence and the solidity of the title to the secret held by the company.
An emblematic example: the Coca-Cola formula, considered an industrial secret, is a perfect illustration of a business secret that has been protected under international law for over a century, without going through the patent process.
How to protect your information effectively
Practical internal protection measures
For a business secret to remain protected under the law, it must be surrounded by practical precautions. This starts with an appropriate organisation:
- multi-levelclassification of documents (internal, sensitive, secret),
- limiting access to only those employees who need it
- and adoptingdigital security tools (passwords, encryption, back-ups).
Vigilance also requires a clear corporate culture: informing, training and regularly reminding employees that certain elements constitute intangible assets and that they must remain out of the public domain.
Contractual and partnership arrangements
Written agreements are an essential guarantee. They provide a reminder of
- the nature of confidential information
- how they are to be used
- and the penalties for disloyal behaviour.
The most common are NDAs (Non-Disclosure Agreements), specific clauses in partnership or subcontracting agreements and special undertakings signed when sensitive information is passed on.
These texts clearly set out the rights and duties of each author or represented party, while allowing the executive to defend himself before a civil court in the event of a dispute.
Goldwin Avocats, experts in intellectual property rights and competition law, can advise and assist you in building a robust model for managing trade secrets and responding effectively in the event of a dispute.
Trade secrets and the courts: what judges can really order
Remedies and sanctions in the event of a breach of business secrecy
Infringement of a trade secret renders the perpetrator liable and entitles the injured party to compensation. According to the French Commercial Code (art. L.152-3 et seq.), the court may order a number of measures:
- Prohibition on the use and disclosure of the secret, or on the pursuit of a project based on elements obtained in an unfair manner.
- Seizure or destruction of any medium containing the secret, or even withdrawal from the market of products resulting from this infringement.
- Payment of damages calculated on the basis of financial loss, misappropriated profits or moral prejudice.
In the event of abuse or delaying tactics, the perpetrator may also be ordered to pay a civil fine (art. L.152-8), capped at 20% of the amount claimed in compensation, or €60,000 if no figure is set.
The court may adapt its decisions to the circumstances: for example, it may substitute compensation for material measures where strict application would result in disproportionate damage for the author and where he was unaware of the secret nature of the information at the time it was used.
Lastly, French criminal law also punishes certain breaches, with penalties of up to three years’ imprisonment and a €375,000 fine, particularly when the disclosure of sensitive data seriously harms a company’s interests (offence of industrial secrecy, insider dealing, or information passed on to an unauthorised third party).
Protecting people acting in good faith
The legislation provides guarantees for people acting in good faith. Whistleblowers, journalists and employees may reveal a business secret in order to defend the public interest, report an irregularity or preserve freedom of the press.
The Constitutional Council(decision no. 2018-768 DC, 26 July 2018) confirmed this balance: respect for secrecy must give way when disclosure is justified by a higher cause, thus preventing this legal tool from becoming an instrument of censorship.
Strategy and choices for the company
Business secrecy or intellectual property?
The choice between patent and trade secret depends on the strategy being pursued.
- Patent : offers a monopoly of exploitation for a limited period, generally 20 years, and constitutes a title recognised throughout the world. Its main advantage is legal certainty and the possibility of generating income via licences. But it involves public disclosure and high costs (filing, maintenance, litigation).
- Business secret: this remains valid as long as the information is kept secret and easily accessible only to authorised persons. Its major advantage is its flexibility and the absence of registration fees. On the other hand, protection disappears if the secret is revealed, so each option has its advantages and limitations: a patent ensures visibility, while secrecy guarantees discreet but fragile protection.
Integrating secrecy protection into economic strategy
Trade secrets are a lever of economic strategy:
- value enhancement in the event of company transfer ;
- attractiveness in a competitive sector
- protection against industrial espionage.
Conclusion
Whether it is a question of knowing what information can be protected, how to avoid unfair disclosure or what penalties are available, business secrecy is an essential bulwark for any organisation. The law of 30 July 2018, supplemented by European law, gives companies and managers the means to protect their strategic data and to react in the event of a breach.
But the key remains prevention, with internal procedures, solid contracts and a clear strategy. Goldwin Avocats, specialists in business law and intellectual property, can help you secure your projects and protect your assets.
Frequently asked questions about business secrecy
How can I prove that data is covered by business secrecy?
Three elements must be demonstrated: that the information is not public, that it is of strategic importance and that the company has taken concrete measures (clauses, security, internal classification). Case law requires documented proof (minutes, contracts, internal charters).
Can trade secrets be sold or licensed?
Yes, a trade secret can be sold or licensed in the same way as a patent or other form of intellectual property. However, its confidential nature complicates transactions: assessing its value often requires prior access to the information, governed by a non-disclosure agreement.
To secure the relationship, the donor must maintain confidentiality by means of strict clauses, otherwise the secrecy would lose all legal effectiveness.
What should be done if an employee takes confidential documents?
The employer can take summary proceedings to order the return of the files, seize the disputed documents and claim damages. A claim for unfair competition or breach of secrecy may also be made.
When is it better to opt for business confidentiality?
Business secrecy is recommended when an innovation is not patentable, when it can remain secret for a long time or when its cost does not justify a patent. It is an appropriate option for manufacturing processes that are difficult to reproduce, or before a patent is filed.
On the other hand, this route requires constant preservation measures and can be tricky to enforce in some countries.
Is it safe to share a secret with a partner?
Yes, provided that the obtaining and use of the information are governed by written contracts (NDA, contractual clauses). It is essential to limit access to only those people who need to know, and to include a confidentiality clause in every agreement.
