On 7 August 2018, the President of Poland signed the Act amending the Act on Combating Unfair Competition and some other acts. Its purpose is to adapt the provisions of Polish law to Directive 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of classified know-how and classified commercial information (business secrets) against their unlawful acquisition, use or disclosure.
The most important changes introduced by the Act include:
– Amendment of the definition of “an act of unfair competition”
According to the new regulations, “an act of unfair competition” means not only disclosing and using business secrets belonging to another person, but also obtaining them.
– Clarification of the definition of “business secrets”
Under the new regulations, “business secrets” means the technical, technological, or organizational information of an enterprise or other information of commercial value, which, as a whole or in a particular combination of its elements, is not generally known to individuals usually dealing with this type of information or is not easily accessible to such individuals unless the employer has taken steps, with due diligence, to keep it confidential.
– Introduction of protection for “whistle-blowers”
According to the new regulations, the following (among others) cannot be considered as acts of unfair competition:
(a) an act intended to protect a legitimate interest protected by law,
(b) an act taken in the exercise of freedom of expression,
(c) an act aimed at disclosing irregularities, misconduct or infringements of the law in order to protect the public interest, or
(d) the disclosure of business secrets to employees’ representatives to enable them to properly perform their statutory functions.
– Abolition of time limit on disclosing business secrets
Under the new regulations, the rule prohibiting former employees from committing acts of unfair competition towards their former employer within three years of the termination of their employment contract has been removed. In practice, this means that employers will be able to extend the confidentiality period depending on their business needs.
In the light of the new regulations, we recommend that employment contracts and workplace regulations be adapted to better protect the employer’s interests. In particular, the time limit on disclosing business secrets should be extended while workplace regulations should precisely indicate what information is deemed as business secret.