Professional secrecy within the enterprise

1 Definition
2 Notion of confidential information
3 Which information is public or may be rendered public?
4 Use of confidential information
5 Abuse of foreknowledge

1 Definition

Clearly, the maintaining and guaranteeing of the professional secrecy, and the ensuring of the confidentiality of certain information within an enterprise, is of utmost important for the well-being and functionality of that company.

Professional secrecy is applicable to al procedures which an enterprise uses, and to all her production methods, including industrial secrets, business secrets, technical, commercial and financial inquiries, reports, software, technical indications and analyses … as well as other kinds of information which the staff member has received from the company and his superiors.

To ensure the protection of this information, it is quite possible that a clause of secrecy or a non-disclosure agreement is attached to the contract of employment of the employee.

A clause of secrecy imposes the obligation to the employee not to publish any confidential or sensible competitive information to the exterior world, during and even after his employment. This concerns information that the employer has gained during the execution of his duties. This could be information regarding the company, but also regarding customers, staff members, etc. Sometimes, it is possible that a penalty clause is attached in combination with the clause of secrecy: if any infraction of the secrecy clause had been made, then the employee is due a fine to his employer.

Even if there has not been any secrecy clause agreed upon, even then the employee is held to his secrecy not to make public any company information. If, nevertheless, he disperses confidential or sensible competitive information, which causes any kind of damage to his employer (or third concerned party), then the employee could be forced to compensate his employer for the damage that has been made (based upon wrongful act and/or default). But other than in comparison to having a clause of secrecy, the disadvantage is that the employer needs to prove that the damage that he has suffered is due to the dispersion of information, and needs to demonstrate how large the damage is.

A non-disclosure agreement (sometimes referred to as declaration of secrecy) is an agreement which ensures that the employee, to whom is explained the uniqueness of a product or service by the employer, can not use this unique property for his own purposes, but to keep the information related to this product, service or idea secret, except for other employees in the same company.

A non-disclosure agreement implies that the employee, when presented a product, service or idea,

Example: someone has invented a new product and wishes to distribute it through a large service provider. The service provider signs a non-disclosure agreement, but nevertheless uses a specific unit, aspect or property of the new product for appliance on his own products. If the service provider is summoned, he will need to compensate the inventor for any lose incomes.

Furthermore, we would like to bring to the attention that one of the obligations of the employee when concluding a contract of employment, is his duty to secrecy and his prohibition to conduct acts of unfair competition. This also implies that the employee, even after termination of the contract of employment, is restrained to make public any industrial secrets, business secrets or other sensible and confidential information, and to withhold himself of acts of unfair competition or to collaborate in such activities.

2 Notion of confidential information

In particular, every employee commits himself in fact to

A manager should notify his staff on a regular base which data managed by the department is of confidential nature. Therefore, the manager needs to base himself on the specific characteristics and assignments of his department, as well as on a possible list of confidential information that circulates in the enterprise.

However, some information is not considered as “confidential”. This involves the following kind of information:

Whenever the announcement of confidential information to third parties is necessary, i.e. within a judicial procedure or imposed by the government, the information will be communicated to some extent. The confidential nature of it will however always be held intact and therefore will not be modified in any way.

Furthermore, we should not ignore the fact that the application of the commitment to secrecy still exists, which imposes very strict conditions when managing i.e. offer requests and contacts with suppliers, this in order to avoid every risk of discrimination between the applicants.

This concerns for instance information which could provide a possible advantage to a customer or supplier compared to other potential competitors. This is certainly the case whenever a supplier or contractor receives information earlier than his rivals, which will allow him to submit a better offer, even if it is only due to the time advantage he had over his rivals to prepare this offer.

3 Which information is public or may be rendered public?

Following information is not considered as confidential:

However, confidential information may be used for statistical purposes, as long as the distribution of that information does not allow the identification of the participating companies. On the other hand, combined publications containing data, figures and statistics, such as annual reports, are not confidential.

4 Use of confidential information

The person or the department that generates or possesses confidential information, holds the full responsibility for the management of this information.

Even when any confidential information has been released, as well inside as outside the company, the staff members are still obliged to show the utmost discretion. Therefore, every staff member has to watch to

Confidential information should under no circumstances be given to persons who do not work for account of the same company, without any precise professional reason. However, confidential information which is essential to the execution of a certain function can be distributed to external persons (trainees, temporary workers, contractors, suppliers, authorised agents …) but only when they are committed to a clause of secrecy which guarantees the confidentiality and the non-disclosure of this information.

In any cases, the confidentiality of the disclosed information is always applicable, despite the mode of communication: oral, written, cassettes, photographs, electronic messages, fax, computer data or with whichever other medium.

5 Abuse of foreknowledge

Whoever works in an enterprise, has for the exercise of his function certain information concerning the partnership at its disposal, which could possibly influence the course of the stocks of this company when this information would be made public.
Prudence obliges that this foreknowledge must not be used in investment decisions and exchange transactions, and that this information should not be announced to third parties, as long as the enterprise does not publish the information itself (i.e. Fortis and Karel De Gucht).