22 December, 2016
In one way or another, every business lives and dies by the quality of the information it holds. That information could be anything from its plans to build a faster engine, a generations' old recipe for a tastier chicken seasoning to a simple list of business contacts. A business is able to maintain its edge by ensuring that this knowhow remains secret and does not fall into the wrong hands.
If the recipe for a company's secret sauce finds its way to its fiercest rival or, worse still, it becomes available to everyone with internet access, the damage may be irreparable.
What are the risks?
There's the obvious one: that some employees will look to make off with your secrets in order to leave and compete. But there are also less obvious risks. For example, what if an employee posts a selfie online which happens to include an image of the confidential papers on his desk? Have you thought about what to do if an employee leaves his work phone on the train? Are you making sure that documents don't find their way to a non-company server as a result of an inadvertent upload from a tablet plugged in to charge?
What can you do to help your business to remain competitive?
Given the importance of keeping key information secret, it's worth thinking about whether or not your business is doing all it should to ensure that it is adequately protected. There are of course steps you can take if your secrets get out in the open, such as undertaking forensic IT investigations and seeking injunctions and damages from the courts, but the best thing you can do is to stop the horse from bolting.
We have set out below a few ideas which are worth thinking about. Many of them may sound obvious to you
but the reality is that most businesses are not taking action so this is a chance for you to get your business ahead of the game!
Start mapping out the categories of information which are integral to your business and work out who has access to them.
Evaluate which categories of information really are and need to remain secret and think about which members of staff should be able to access them.
Mark files and information as confidential and ensure that they are password-protected where appropriate.
Only allow staff members to access parts of your servers and files which they really need to access in order to do their jobs.
Check your employment contracts. Are they up to date? Do they place obligations on employees after they leave? How do they seek to protect company property and confidential information?
Do you have policies in place designed to help employees to understand how to stop information getting out into the open by accident? If so, do employees know they exist?!
What would you do if you suspected that your business secrets had been stolen? Do you have a designated team to deal with that scenario and would its members know what to do in order to act fast and ensure that damage is kept to a minimum.
Why act now?
The world has become more and more reliant on technology and knowhow and, as a result, the value of intangible assets to businesses has never been higher. By June 2018 all EU countries (most likely including the UK notwithstanding Brexit!!) will be required to implement the Trade Secrets Directive and this new law will have an impact on the ways in which business secrets are protected. In particular, it will require organisations to take active steps to secure and keep secret the information they wish to be protected.
It's never too early to make sure that your business secrets are safe and, with the passing of the Directive, now is the time to design and implement practices which will protect your business secrets in the future.
David Samuels, Bird & Bird
david.samuels@twobirds.com
