Responsibility of an employee for disclosure of trade secrets

If an employee of the company discloses this information, he may face criminal liability under Article 183 of the Criminal Code of the Russian Federation. Article 183. Illegal receipt and disclosure of information constituting commercial, tax or banking secrets

1. Collecting information constituting commercial, tax or banking secrets by stealing documents, bribery or threats, as well as in any other illegal way –

shall be punishable by a fine in the amount of up to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to one year, or by correctional labor for a term of up to one year, or by forced labor for a term of up to two years, or by imprisonment for the same term.

2. Illegal disclosure or use of information constituting commercial, tax or banking secrets, without the consent of their owner, by a person to whom it was entrusted or became known through service or work, –

shall be punishable by a fine in the amount of up to one million rubles or in the amount of the wages or other income of the convicted person for a period of up to two years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by corrective labor for a term of up to two years, or by forced labor. for a term of up to three years, or imprisonment for the same term.

3. The same acts that caused major damage or were committed out of selfish interest, –

shall be punishable by a fine in the amount of up to one million five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of up to three years, with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by forced labor for a term of up to five years, or imprisonment for the same period.

4. Acts provided for in parts two or three of this article, which entailed grave consequences, –

shall be punishable by forced labor for a term of up to five years or imprisonment for a term of up to seven years.

Keep in mind: in order for information important to a company to acquire the status of a trade secret, several conditions must be met. First, the manager must approve the list of information and documents that constitute a trade secret for the company. Then it is necessary to exclude free access to such information and take measures to protect it. To do this, at a minimum, it is necessary to approve the rules for handling secret documents, the rules for accessing them, as well as the procedure for monitoring compliance with these rules.

Employment contracts with employees and business contracts with counterparties must include a clause on liability for disclosure of trade secrets. In this case, the employee must be familiarized with a list of secret information against receipt, and in the business agreement it is necessary to indicate which information is a trade secret.

Each material medium of secret information (for example, a document, a floppy disk) must be stamped “Trade Secret”.

If these conditions are not met, the investigator will not be able to hold the employee criminally liable for disclosing information important to the company.

In practice, the following types of trade secrets are distinguished:

• information about the financial situation of the company;
• information about the company's developments (know-how, industrial designs);
• data about clients, contractors and other partners of the organization;
• information about the property of the enterprise and its value;
• other commercial information.

To limit the spread of confidential information, companies take measures to protect it. For example, they appoint responsible persons, and on the basis of the Labor Code of the Russian Federation, they include in employment contracts a condition on the responsibility of employees for the illegal disclosure of confidential information about the enterprise.

The following information cannot be a trade secret:

• about the founders of the company and its management;
• about the characteristics of labor and the number of employees;
• about non-compliance with legal requirements;
• on documentation giving the right to engage in business;
• about the state of fire safety;
• about salary arrears;
• on the conditions of competitions and auctions.

When charged with disseminating confidential information, you should find out what data was transferred to third parties. Criminal liability arises only for the disclosure of information constituting a trade secret. It is advisable to seek help from an experienced lawyer. He will tell you how to prove that your actions do not constitute a crime.

Commentary on Article 183 of the Criminal Code of the Russian Federation

1. A considerable part of the information located in the sphere of activity of business entities and citizens is of particular value (or commercial significance) both for the organizations themselves and for their partners or clients. The consequence of this is a special attitude towards such information, excluding its wide publicity, and measures taken to protect it. Some of this information is not subject to public disclosure, not only due to the reluctance of the persons interested in this, but also due to the direct instructions of the law. The status of such information was reflected and consolidated in special legal institutions - the institutions of banking, tax and commercial secrets.

2. The social danger of the crime lies in the fact that unlawful actions regarding information constituting a banking, tax or commercial secret, on the one hand, can cause significant harm to business entities or other persons. On the other hand, illegal disclosure of information, for example, about the status of a bank account (or deposit) against the will of its owner, is a serious violation of a citizen’s constitutional rights to privacy.

Acts provided for in parts 1 and 2 of the comment. Articles belong to the category of crimes of minor gravity, Part 3 - of medium gravity, Part 4 - to serious criminal acts.

3. The object of the criminal attack is public relations arising in the sphere of circulation of information constituting commercial, tax or banking secrets. The specified information will be the subject of infringement. Information media, both in documentary and non-documentary form (for example, a floppy disk, a computer hard drive, etc.) are not included in the concept of the subject of the crime in question.

4. A secret is “something hidden from others, not known to everyone, a secret” <1>. It seems incorrect to talk about banking secrecy as part of a commercial secret. Moreover, it is wrong to identify them. Trade and banking secrets have a common legal nature, but, despite a number of common features, they differ in scope and content. Banking secrecy has a number of specific features that are unique to it. In addition, information constituting a banking secret may objectively have no commercial value and therefore will not be a type of trade secret. ——————————— <1> Ozhegov S.I., Shvedova N.Yu. Explanatory dictionary of the Russian language. M., 1995. P. 776.

5. In accordance with civil law, information constitutes a commercial secret when it has actual or potential commercial value due to its unknownness to third parties, there is no free access to it on a legal basis and the owner of the information takes measures to protect its confidentiality.

According to paragraphs 1 and 2 of Art. 3 Federal Law of July 29, 2004 N 98-FZ “On Trade Secrets” (as amended on December 18, 2006) <1> trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, and preserve position in the market for goods, works, services or obtain other commercial benefits. Information constituting a trade secret (trade secret) is information of any nature (production, technical, economic, organizational, etc.), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have actual or potential commercial value due to its unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a trade secret regime. ——————————— <1> NW RF. 2006. N 52 (part 1). Art. 5497. The specified version of the Federal Law comes into force on January 1, 2008. Note scientific ed.

Information that cannot constitute a trade secret is determined by law and other legal acts (Article 139 of the Civil Code), among them the already mentioned Federal Law “On Trade Secrets”.

6. Decree of the President of the Russian Federation dated March 6, 1997 N 188 “On approval of the List of confidential information” (as amended on September 23, 2005) <1> approved the List of confidential information, according to which confidential, along with others, includes information related to commercial activities, access to which is limited in accordance with the Civil Code and other Federal Laws. ——————————— <1> NW RF. 1997. N 10. Art. 1127; 2005. N 39. Art. 3925.

7. There is a whole range of information regarding which the legislative and executive bodies of state power clearly speak as information that cannot constitute a commercial secret. The list of such information is contained in Decree of the Government of the RSFSR dated December 5, 1991 N 35 “On the list of information that cannot constitute a commercial secret” (as amended on October 3, 2002) <1>, Decree of the President of the Russian Federation dated November 16, 1992 N 1392 “On measures to implement industrial policy during the privatization of state-owned enterprises" <2>, the Law on the Securities Market, Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n "On approval of the Regulations on accounting and financial reporting in the Russian Federation" <3> and others. ——————————— <1> SP RF. 1992. N 1 - 2. Art. 7; NW RF. 2002. N 41. Art. 3983.

<2> SAPP. 1992. N 21. Art. 1731.

<3> BNA. 1998. N 23.

Thus, the constituent documents (decision to create an enterprise or the constituent agreement) and the charter of the enterprise, documents giving the right to engage in entrepreneurial activities (registration certificates, licenses, patents), information on established forms of reporting on financial and economic activities and other do not constitute a commercial secret. information necessary to verify the correctness of calculation and payment of taxes and other obligatory payments, documents on payment of taxes and obligatory payments, annual financial statements of the organization, a number of information relating to privatization, disclosure of information of the issuer of publicly placed issue-grade securities, etc.

8. What constitutes the subject of banking secrecy? The Civil Code states: “The bank guarantees the secrecy of the bank account and bank deposit, account transactions and information about the client” (Part 1 of Article 857). In accordance with the Law on Banks, credit institutions and the Central Bank guarantee the secrecy of transactions, accounts and deposits of their clients and correspondents. All employees of a credit institution are required to keep secret the transactions, accounts and deposits of its clients and correspondents, as well as other information established by the credit institution, unless this contradicts the Federal Law (Part 1, Article 26). We are talking about the secret of: a) bank account; b) bank deposit; c) account transactions; d) information about the client; e) information about correspondents; f) other information established by the credit institution.

9. Of fundamental importance in the sphere of circulation of information constituting bank secrecy is the issue of providing such information to government bodies and officials. The law establishes an exhaustive list of persons entitled to receive information constituting bank secrecy. As a general rule, information constituting bank secrecy can only be provided to the clients themselves or their representatives. Such information can be provided to government bodies and their officials only in cases and in the manner prescribed by law (clause 2 of Article 857 of the Civil Code).

10. Persons who have the right to request information constituting bank secrecy are listed in Art. 26 of the Banking Law. For example, certificates on transactions and accounts of legal entities and citizens carrying out entrepreneurial activities without forming a legal entity are issued by the credit organization to these individuals and citizens themselves, courts and arbitration courts (judges), the Accounts Chamber of the Russian Federation, state tax authorities, customs authorities of the Russian Federation in cases provided for by legislative acts on their activities, and with the consent of the prosecutor - to the preliminary investigation bodies in cases under their investigation.

A credit institution has the right to provide information on accounts and deposits of individuals to their owners, as well as to the courts and, with the consent of the prosecutor, to the preliminary investigation bodies in cases that are being processed by these investigative bodies.

Certificates on accounts and deposits in the event of the death of their owners are issued by the credit organization to the persons indicated by the owner of the account or deposit in the testamentary disposition made by the credit organization, notary offices for inheritance cases in their proceedings on the deposits of deceased depositors, and in relation to the accounts of foreign citizens - foreign consular offices institutions.

The issue of the Central Bank and audit organizations is particularly discussed, since due to the specifics of their activities they possess or may possess information constituting bank secrecy. The Central Bank does not have the right to disclose information about accounts, deposits, as well as information about specific transactions and operations from the reports of credit institutions, obtained by it as a result of performing licensing, supervisory and control functions, except in cases provided for by law. Auditing organizations do not have the right to disclose to third parties information about transactions, accounts and deposits of credit institutions, their clients and correspondents, obtained during their audits, except in cases provided for by the Federal Law.

In order to improve measures to combat the legalization (laundering) of proceeds from crime, from February 1, 2002, information on the transactions of legal entities, citizens carrying out entrepreneurial activities without forming a legal entity, and individuals must be provided by credit institutions to the Federal Financial Service monitoring (Rosfinmonitoring) is a body authorized to take measures to combat the legalization (laundering) of proceeds from crime and coordinating the activities of other federal executive authorities in this area. The specified authorized body does not have the right to disclose to third parties information received from credit institutions in accordance with the Federal Law “On Combating the Legalization (Laundering) of Proceeds from Crime and the Financing of Terrorism,” except for the cases provided for by this Law.

11. Tax secrecy is formed by any information about the taxpayer received by the tax authority. The exception is information: a) disclosed by the taxpayer independently or with his consent; b) about the taxpayer identification number; c) on violations of legislation on taxes and fees and penalties for these violations; d) provided to tax or law enforcement authorities of other states in accordance with international treaties (agreements), one of the parties to which is the Russian Federation, on mutual cooperation between tax or law enforcement authorities (in terms of provision to these authorities) (Article 102 of the Tax Code).

12. The objective side of the crime provided for in Part 1 of the comment. article, consists of collecting information constituting commercial, tax or banking secrets. The methods can be varied. The article only names theft of documents, bribery, threats, and, of course, this is not an exhaustive list, since it indicates the possibility of other illegal methods. A necessary condition for qualification under Part 1 is that there should not be free access to the information and its owner has taken all appropriate measures for this.

13. Illegal disclosure or use of such information without the consent of its owner by a person to whom it was entrusted or became known through service or work constitutes a crime under Part 2 of the comment. articles.

13.1. Disclosure should be understood as any actions aimed at familiarizing or the possibility of familiarizing with information constituting a commercial, tax or banking secret, both to an unlimited number of persons (for example, through dissemination in the media, the Internet) and to a specific person.

Illegal disclosure under part 2 comments. Article presupposes the commission of the same actions that are understood as disclosure in Part 1, but these actions are conditioned by the fact that the owner of the relevant information does not consent to this. This also includes violation of the established ban on the disclosure of such information, including disclosure of information as a result of non-compliance with the procedure for its provision, when there is no consent of the owner.

13.2. The same condition (lack of consent of the owner of the information) applies to the illegal use of such information.

Illegal use may consist in the use of relevant information for personal interests or the interests of certain organizations, parties, movements interested in possessing this kind of information, for example, to develop a strategy of behavior and campaigning in the election campaign, in political technologies, etc.

If the culprit sought to receive a reward in exchange for the obtained information, for example, from a competitor of the owner of the information, or the confidential information was to be used to obtain benefits in business, then there are signs of a crime provided for in Part 3 of the comment. article - committed for selfish reasons.

14. To qualify an act as a crime under parts 1 and 2 of the comment. Articles on the presence of harmful consequences are not required. The alternative elements of crime enshrined in them are considered formal, ending accordingly at the moment the collection of information constituting commercial, tax, or banking secrets begins, or the disclosure or use of this information. Qualified personnel (Part 3) have formal-material, and especially qualified (Part 4) - material legislative structures, they are accordingly considered completed at the moment of: a) causing major damage or committing the specified actions out of selfish interest (Part 3); b) the onset of grave consequences (part 4).

14.1. The amount of major damage is determined according to note. to Art. 169 and amounts to over 250 thousand rubles.

14.2. For serious consequences, see paragraph 12 of the commentary. to Art. 201.

15. The subjective side of the crime is characterized by guilt in the form of direct intent. The motive (revenge, personal hostility, desire to get ahead of a competitor) for qualifying an act as a crime under Part 1 or 2 does not matter. In a qualified composition (Part 3), the motive for committing a crime can become significant for its qualification if we are talking about selfish interest.

16. The subject of a criminal offense is any person of sane who has reached the age of 16. These may be persons who became the owners of information constituting commercial, tax or banking secrets due to their professional duties, as well as other persons whose actions were aimed at achieving a criminal result based on the motives and methods indicated in the comment. article.

16.1. The subject of the encroachment may also be special if the disclosure or use of the specified information was carried out by a person to whom the secret of information was entrusted or became known through service or work (parts 2 - 4).

Legislation on the protection of trade secrets

At the federal level, the Law on Trade Secrets dated April 29, 2007 No. 98-FZ is in force. In order to implement its requirements, the necessary documentation is accepted at the organizational level and measures are taken aimed at protecting classified data:

• a list of information that is assigned the status of a trade secret is approved;
• rules for working with confidential data are introduced;
• employees of the organization who are responsible for disclosure are determined;
• the position is approved and changes are made to job descriptions and labor contracts;
• financial liability is introduced;
• a lockable cabinet or safe is allocated;
• personal access to computers is provided.

Employees sign a written commitment to confidentiality throughout their employment with the company. Former employees remain liable after termination.

Measure of responsibility

If a person illegally discloses a trade secret to which he was allowed to access at work, he faces (Part 2 of Article 183 of the Criminal Code of the Russian Federation):

• a fine of up to 1,000,000 rubles;
• or a fine in the amount of wages or other income of the convicted person for a period of up to two years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years;
• or correctional labor for up to two years;
• or forced labor for up to three years;
• or imprisonment for a term of up to three years.

If a person discloses secret information, having obtained it illegally (for example, stole documents, hacked a database, etc.), he faces:

• a fine of up to 500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of up to one year;
• or correctional labor for up to one year;
• or forced labor/imprisonment for up to two years.

If, by divulging a trade secret, the culprit caused major damage to the company (more than 1,500,000 rubles), then the punishment is more severe:

• a fine of up to 1,500,000 rubles;
• or in the amount of wages or other income of the convicted person for a period of up to three years with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years;
• or forced labor/imprisonment for up to five years.

The most severe punishment is provided for the disclosure of classified information that entails grave consequences: forced labor for up to five years, or imprisonment for up to seven years. Serious consequences include bankruptcy of a company, deterioration of its financial position, ruin of an individual entrepreneur, etc.

PRIMERIvanova, an employee of a pharmaceutical company, sold information about the development of a new drug. The company illegally obtained a license for its production, and soon the drug went on sale in a limited batch. It later turned out that this caused not only damage to the company where Ivanova worked, but also harm to health those who bought the medicine and took it. Ivanova did not know that during the latest experiments, the company’s workers came to the conclusion that the medicine had a bad effect on the stomach. Scientists were going to make changes to its composition. The investigator opened a criminal case against Ivanova for disclosing a trade secret, which entailed grave consequences.

Examples of cases of improper receipt and disclosure may include:

• discovery of documentation containing confidential information from an employee outside the company;
• recording the fact of disclosure using a video surveillance camera;
• sending secret data via email or copying it to a flash drive.

It is necessary to distinguish between two types of liability: criminal and administrative. When qualifying an act as criminal, it is established that the perpetrator has direct intent and selfish goals. If the crime is aggravated by causing damage on a large scale or with grave consequences, the court will impose a more severe sentence. The Code of Administrative Offenses of the Russian Federation provides for a more lenient punishment in the form of a fine (Article 13.14 of the Code of Administrative Offenses of the Russian Federation).