Business secrecy – one of the first decisions in this matter!

Court of Appeal of Versailles, 6th chamber, February 27, 2020, n° 19/03646

In the case that gave rise to the decision in question, a company accused one of its employees of actions that violated business secrecy. She considered that he had transferred on numerous occasions from his professional email to his personal email, emails containing confidential commercial information belonging to the company, obtained in an illicit way, this for his personal use or that of a competing company.

The employee, for his part, opposed the absence of business secrecy, the lack of any violation of the latter and, alternatively, the lack of opposability of business secrecy with regard to respect for the right to defend himself, having carried out these transfers to constitute evidence in the context of an upcoming litigation of his dismissal.

The Versailles Court of Appeal proceeds here with a three-step reasoning, concerning (i) the characterization of a trade secret, (ii) the characterization of an unlawful acquisition and (iii) the exceptions to trade secrets.

With regard to the characterization of a business secret, the court recalls first of all that the information must not be

" generally known or easily accessible for people familiar with this type of information because of their sector of activity " ( article L151-1 of the Commercial Code ).

According to the court, trade secrets relating to an increase in the company's prices are not justified by an increase in the cost of raw materials, this information being necessarily known to the market.

Then, and in a more interesting and surprising way, it seems to consider, without further explanation, that e-mails revealing negotiations between companies without a definitive price being mentioned, do not constitute a business secret. However, negotiations have real commercial value, especially when they are carried out with large companies and when they contain price proposals. Did the court consider here, in its sovereign assessment of the facts, that this was information known to the market or did it consider that the exchanges ultimately revealed little sensitive information? It will therefore be necessary to follow future case law to determine whether this position is confirmed.

With regard to the characterization of illicit obtaining, the Versailles Court of Appeal considers that this is not characterized when an employee transfers to his personal mailbox e-mails corresponding to exchanges in which he participated in the course of his work. Again, surprisingly, the court, in its sovereign appreciation of the facts, does not consider that this is an unauthorized copying of information without the consent of the company. This position should undoubtedly lead companies to specify more to their employees what can or cannot be transferred and copied on a personal computer and in what context.

Finally, the Court of Appeal recalls that business secrecy is not enforceable in certain cases, in particular

“ when obtaining, using or disclosing the secret is required or authorized by European Union law, applicable international treaties or agreements or national law, in particular in the exercise of investigative powers, control, authorization or sanction by the jurisdictional or administrative authorities ” ( article L151-7 of the French Commercial Code ).

Considering that the employee transferred e-mails in order to prepare his defense and constitute evidence in the context of the upcoming litigation relating to his dismissal, the Versailles Court of Appeal considers that the employee falls well within the exception and that a secret is thus not opposable to him.

The court thus rejected the company's claims for the protection of business secrecy, which in this case proved to be ineffective in relations with the employee in question.