Confidentiality clauses for employees



How do you get that employees keep confidential information to which they have access?

Information is a key asset in most companies. This critical information can refer to both "know how" and other trade secrets, customer lists, information providers or even in the financial area.

Disclosure of this information can mean huge losses. However, we can minimize that risk. But on the one hand, You can perform preventive work, reducing the chances of future "leakage" of key information occurring. Moreover mechanisms can be articulated, so that if the release occurs, You can claim with greater assurance of success through the courts and obtain compensation for damages.

The confidentiality agreements are the right tool, to the extent possible, prevent the escape of critical business information.

The confidentiality agreement may have consequences in different areas.

Civil matters

In civil law, it is perfectly feasible to establish a penal clause in the amount deemed appropriate, to ensure fulfillment of a confidentiality agreement. And the penal clause, can be configured in a manner consistent with the corresponding compensation for damages.


The employee who discloses the key company information, may be dismissed pursuant to the provisions of Article 54.2.d of the Statute of Workers, which imposes the dismissal for breach of contract:

"The breach of good faith contractual, and breach of trust in the performance of work. "

This applies to the judgment of the Superior Court of Galicia 23 November 2012 where the dismissal of an employee who had forwarded to your particular email a lot of confidential company information is confirmed.

Criminal matters

The penal code also has channels for the protection of key company information:

• The disclosure of information reserved of legal persons without their consent, can lead sentences of one to four years in prison, with corresponding fines and professional disqualification of 2 a 6 years old (Art. 200 Penal Code).
• The Seizure data by any means to discover a secret company, carries a fine of two to four years and a fine of 12 a 24 months (Art. 278 del C.P.). And if that secret is disseminated or disclosed to third parties, Prison rises three to five years.
• If revealing a company secret hath a legal or contractual obligation to maintain confidentiality, the penalty shall be imprisonment of 2 a 4 years and a fine of 12 a 24 months (Art. 279 del C.P.).

Scope of Unfair Competition

Where the us the partner leaves the company to found their own or join another, a protection path would Unfair Competition Law, specifically, Article 13 on violation of secrets.

Reserved Information

The next question that arises is to determine what is considered proprietary information. For the doctrine, a secret company meets these characteristics:

• Has confidential: only accessible by certain persons.
• There is will keep a secret by Company.
• Can have value for a competitor, relative to a competitive advantage Company, that allows you to generate profits.
• There should be a intentional element, by the which violates the secret: that intention may prove tacitly (if you establish sufficient safety measures had been, so that it reaches that information is not "accidentally" or explicitly (have signed the appropriate confidentiality clause).

Ultimately, firm confidentiality clauses, is an appropriate mechanism to prevent (as far as possible) disclosure issues critical company information. Not completely solve the problem, but the company that agreed, will be in a better position to protect their trade secrets.

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