Ett förstärkt skydd för företagshemligheter? - En studie av EU-direktivet om företagshemligheter och dess konsekvenser för svensk rätt

Sammanfattning: Trade secrets have become an increasingly common way for companies to ensure that their investments in know-how and research provide maximum returns. An effective protection of trade secrets is thus crucial for companies' ability to compete, and not least for maintaining fair competition. In recent years there has been a demand for a European, uniform regulatory framework. In the light of this increased demand, the European Union adopted a Directive on the protection of trade secrets, which is to be implemented by 9 June 2018. The purpose of this essay is to examine what, if any, changes the Directive will entail for the Swedish regulation of trade secrets. The conclusion of the examination is that the Directive will entail a significant improvement of the protection of trade secrets. The Directive implements EU legal protection with the possibility of national review, regardless of where within the European Union the unlawful acquisition, use or disclosure has occurred. It also introduces provisions on so-called “infringing goods”. Furthermore, the Directive seems to remedy several of the shortcomings that were revealed during the examination of the Swedish protection. Firstly, the Directive extends the definition unlawful acquisition to include unauthorized copying of legally held information. Secondly, the liability according to the Directive applies to anyone who is in contact with trade secrets, and thus does not, which is the case under the Swedish legislation, depend on whether the person in question can be considered to fall within the one category of liability or the other. Thirdly, the Directive allows for preventative measures. The Swedish regulation does not allow such measures, which has been considered as a major shortcoming. The Directive also has the potential to increase the amount of damages. Unfortunately, the Directive does not contain any provisions regarding the possibility to secure evidence of an unlawful attack on trade secrets. Thus, there seems to be a significant risk that the Directive will become ineffective.