In brief
- The offence of disclosure of trade secrets (revelación de secretos empresariales) protects confidential information that gives a business a competitive advantage: commercial, financial, industrial or organisational.
- To be a trade secret, information must not be generally known or readily accessible, must have business value precisely because it remains confidential, and must have been protected by reasonable measures.
- Discovering a trade secret is punishable by imprisonment of two to four years and a fine of twelve to twenty-four months; if it is also disseminated, disclosed or transferred, by imprisonment of three to five years and a fine of twelve to twenty-four months.
- It is also an offence to disclose a secret known lawfully but subject to a duty of confidentiality, and to exploit a secret knowing that it was unlawfully obtained.
- These are intentional offences with no negligent form, and a legal person (company) may be criminally liable for the offences in Articles 278, 279 and 280.
What is the offence of disclosure of trade secrets?
The offence of disclosure of trade secrets (revelación de secretos empresariales) protects confidential information that gives a business a competitive advantage.
It is not limited to formulas or technical know-how. It may include commercial, financial, industrial or organisational information: customer and supplier lists, prices, margins, market strategies, business plans, manufacturing processes, designs, projects, research data or internal information of particular value.
For information to qualify as a trade secret, it must meet three conditions:
- it must not be generally known or readily accessible in the relevant sector;
- it must have business value precisely because it remains confidential;
- it must have been protected by reasonable measures.
Accordingly, not all internal company information is a trade secret. An employee’s professional experience and acquired skills, and information that is already public, are not protected as secrets under this offence.
The company must be able to prove which specific information constitutes the secret and what measures it took to preserve it: access controls, document classification, IT restrictions, confidentiality agreements, internal protocols or access limitations according to each employee’s duties.
What are the penalties for disclosure of trade secrets? Forms of the offence
The Spanish Criminal Code distinguishes between several types of conduct.
Discovery of a trade secret
This form is committed by anyone who, in order to discover a trade secret, seizes data, written or electronic documents, computer media or other objects relating to it, or uses means of interception, eavesdropping or recording. The penalty is imprisonment of two to four years and a fine of twelve to twenty-four months (day-fine system). This form may be committed by any person, whether from inside or outside the company.
The offender need not go on to use the information, nor does the company need to prove an actual financial loss. Seizure aimed at learning the secret is sufficient.
For example, there may be an offence if a person copies, without authorisation, plans, customer lists or confidential financial documents to which they had no access by virtue of their position, even if the copying is discovered before the material is used.
Dissemination, disclosure or transfer of the discovered secret
If, in addition to discovering the secret, the offender disseminates, discloses or transfers it to third parties, the penalty increases to imprisonment of three to five years and a fine of twelve to twenty-four months.
Transfer may take place by handing over documents, sending files by email, providing login credentials or communicating the information to a competitor. The third party need not go on to exploit the secret commercially: it is sufficient to place it at their disposal.
Disclosure by a person under a duty of confidentiality
Art. 279 of the Criminal Code punishes anyone who discloses, disseminates or transfers a trade secret that they know lawfully but in respect of which they are under a legal or contractual duty of confidentiality. This is the form that may affect, among others, employees, directors, managers, advisers, collaborators or suppliers who have learned the information through their relationship with the company.
The penalty is imprisonment of two to four years and a fine of twelve to twenty-four months. If the secret is used for the offender’s own benefit, the penalties are imposed in the lower half of their range.
This may occur, for example, where an employee uses a confidential customer database to start a competing business, provided that the information used genuinely qualifies as a trade secret.
Exploitation of an unlawfully obtained secret
It is also an offence for anyone who, without having taken part in its discovery, uses, disseminates or transfers a trade secret knowing that it was unlawfully obtained. The penalty is imprisonment of one to three years and a fine of twelve to twenty-four months.
Is there a negligent form of disclosure of trade secrets?
The offences of discovery, disclosure and exploitation of trade secrets require intent. The Spanish Criminal Code does not provide for a specific negligent form.
A security breach or business negligence may give rise to contractual, employment, commercial or data protection consequences, but it does not in itself turn the conduct into this offence.
Can the company be criminally liable?
Yes. A legal person (company) may be criminally liable for the offences in Articles 278, 279 and 280 of the Criminal Code where the act is committed in its name or on its behalf, for its direct or indirect benefit, by its directors or representatives, or by persons subject to their authority where there has been a serious failure to fulfil the duties of supervision, monitoring and control.
The main penalty for the legal person is:
- a fine of two to five years, or a fine of three to five times the profit obtained or that could have been obtained if the latter amount is higher, where the offence committed by the natural person carries a penalty of more than two years’ deprivation of liberty;
- in all other cases, a fine of six months to two years, or of one to two times the profit where that amount is higher.
In addition, the court may impose other consequences, such as dissolution of the legal person, suspension of its activities, closure of premises, prohibition from carrying out certain activities, disqualification from obtaining grants or contracting with the public sector, or judicial administration, depending on the seriousness and circumstances of the case.
Civil liability and other consequences
A conviction may require full compensation for all loss and damage caused. Compensation may include actual loss (daño emergente), loss of profits (lucro cesante), the enrichment obtained by the infringer, non-pecuniary damage to the business and reasonable investigation costs incurred to prove the infringement.
The Spanish Trade Secrets Act (Ley de Secretos Empresariales) also allows the following to be sought:
- cessation or prohibition of the conduct;
- withdrawal or destruction of documents and media;
- a prohibition on manufacturing or marketing products that incorporate the secret;
- under certain conditions, publication of the judgment.
These civil measures may be pursued even if the conduct does not result in a criminal conviction, provided that the requirements for infringement of the trade secret are proven.
Where the legal person is criminally liable, its civil liability is joint and several with that of the natural persons convicted for the same facts. There may also be contractual or employment liability on the part of the employee or collaborator who breached their confidentiality obligations.
Practical example
A company’s sales director, before leaving the post, copies the customer list, customised pricing and the launch plan for a new product. He then hands those files to a competitor he goes on to work for.
If the information was not public, had competitive value and the company had reasonably restricted access to it, the facts may constitute disclosure of trade secrets, in addition to giving rise to a damages claim and a request for withdrawal or destruction of the files.
Merely joining a competitor is not in itself sufficient. Nor is using knowledge, experience or professional relationships acquired lawfully. What matters is the unlawful acquisition, disclosure or use of specific information that meets the conditions of a trade secret.
Frequently asked questions
What information is considered a trade secret?
Information that is not generally known or readily accessible in the relevant sector, has business value precisely because it remains confidential and has been protected by reasonable measures. An employee’s professional experience and acquired skills, and information that is already public, are not protected as secrets under this offence.
Is it an offence for an employee to move to a competitor?
Merely joining a competitor is not in itself sufficient, nor is using knowledge, experience or professional relationships acquired lawfully. What matters is the unlawful acquisition, disclosure or use of specific information that meets the conditions of a trade secret.
Does the company need to suffer a financial loss?
In the form of discovery, the offender need not go on to use the information, nor does the company need to prove an actual financial loss. Seizure aimed at learning the secret is sufficient.
Can this offence be committed through negligence?
No. The offences of discovery, disclosure and exploitation of trade secrets require intent, and the Spanish Criminal Code does not provide for a specific negligent form.