Konsten att bevara en hemlighet. - En undersökning av två motstående intressen – skyddet för företagshemligheter och det fria nyttjandet av kompetens

Sammanfattning: When employees change workplaces, they often start a new employment in a competing business within the same industry. When this occurs, it appears highly relevant to question what an employee is allowed to transfer from the previous employer and use in the new business. Some information and knowledge constitute trade secrets and therefore obtain protection against unlawful use and disclosure according to the Swedish law on trade secrets . Trade secrets often represent considerable values within businesses. A strong protection of trade secrets is therefore important, especially from a competitive point of view. Furthermore, protection of trade secrets is considered necessary for innovation. However, an opposing interest is the freedom of movement for workers and their opportunity to utilize their acquired skills. Extensive protection of trade secrets impedes employment mobility. The primary purpose of this thesis is to examine the balance between the two opposing interests, according to Swedish law on trade secrets. According to the Swedish law on trade secrets an employee can become liable for unlawful use or disclosure of a trade secret belonging to his or her employer. However, special reasons are required in order to impose liability for an employee after termination of employment. Moreover, the definition of a trade secret does not include experiences and skills gained by employees in the normal course of their employment. However, the experience and skill must be drawn from the employee´s memory. In addition to the Swedish regulation on trade secrets, conditions regarding confidentiality and competition are applicable in individual agreements. Regarding the balance of interests between the two opposing interests; companies’ ability to protect their trade secrets and employees’ ability to freely change workplaces and utilizing their skills, the Swedish law on trade secrets is considered more favorable from an employee perspective. However, the question of whether the balance of interests is balanced or not depends on how strong the employee is in the labor market compared to the employer. Therefore, the lack of clarification as to how far the confidentiality is allowed to extend in individual agreements is a problem. Especially regarding the limitation of freedom of movement for workers and their use of personal skills, experience and knowledge. For innovative companies, which are dependent on unique competence, the protection offered in the Swedish law on trade secrets is not considered strong enough. In order to meet the purpose of the Swedish law on trade secrets, confidentiality and competition agreements should be allowed to a greater extent in certain industries.