Trade secrets

Trade secrets are information, knowledge, or data kept confidential because they provide a business with a competitive advantage. If such secrets fall into the wrong hands and are misused by others, it can have serious consequences for the company.

For information to qualify as a trade secret, it must:

• not be known to others,
• have value precisely because it is secret, and
• be something the business actively works to keep confidential

These criteria are defined in the Trade Secrets Act, which helps ensure fair competition between businesses.

Information is considered confidential when it is not generally known and is difficult for people without access to obtain.

To assess whether information is confidential, it may be helpful to ask the following questions:

• How many people have access to the information?
• How easy is it for others to obtain the information?

The fewer people who have access, and the harder it is for others to access the information, the more confidential it is.

Confidential information is valuable when it either provides immediate benefits to the company or has the potential to create value in the future.

Actual value - the information is important to the company’s current operations, for example by providing a market advantage and ensuring profitability.

Potential value - the information may contribute to future earnings or open up new business opportunities, even if it does not have immediate significance today.

Confidential information is adequately protected when the company has made a genuine effort to keep it hidden from individuals who should not have access. The necessary measures will vary and should be adapted to the level of risk – for example, a large medical clinic will typically require stricter security measures than a small bakery.

Examples of effective measures to protect confidential information:

• Implementing access cards, passwords, or firewalls to prevent unauthorized access to sensitive data.
• Training employees and establishing clear internal guidelines for handling confidential information.
• Clearly marking confidential documents, even though a label alone does not automatically ensure secrecy.
• Signing non-disclosure agreements (NDAs) when sharing information with external parties, to prevent unauthorized disclosure.

Public procurement is based on transparency. This means that everyone has the right to request access to the documents. At the same time, it is important to protect the supplier’s trade secrets. Redacting documents is an important tool for maintaining this balance.

What can be redacted?

• Unit prices and calculations showing how prices are determined
• Technical descriptions of specific solutions or production methods
• Information about new products or services under development
• Business strategies, market analyses, and future plans

How is redaction handled in practice?

• The supplier marks information that is considered confidential
• The contracting authority assesses what can actually be redacted
• The documents are technically redacted so that the information cannot be restored
• The remaining parts of the documents are made available for public access

If someone uses or shares a company’s confidential information without permission, there are several ways to take action. The owner of the information can bring the case to court and request help to:

• Stop further use or disclosure of the confidential information
• Ensure the confidential information is not used again in the future
• Receive financial compensation for losses or damages
• Get assistance in repairing the harm that has been done
• In some cases, criminal penalties may also apply if the breach is serious.

If someone has used confidential information without knowing it was secret, they may, in certain cases, be allowed to continue using it. This is assessed on a case-by-case basis.

What does not qualify as a trade secret can vary, but these four types of information provide a useful guideline:

• Insignificant information: Details that have no relevance to the company’s operations or competitiveness.
• Personal experience and knowledge: Skills and experiences employees gain on the job, which they carry with them throughout their careers.
• Publicly known information: Information that is already widely known or easily accessible to anyone.
• Private information: Data related to individuals’ private lives, not the company’s business operations.

This list is not exhaustive, but it offers helpful guidance on what typically does not count as a trade secret.