Disclosure of Trade Secrets

Disclosure of trade secrets is the offence committed by a person who gives or discloses to unauthorised persons information or documents constituting trade, banking or customer secrets learned by virtue of their position, duty, profession or art (Turkish Criminal Code Art. 239). The penalty is one to three years’ imprisonment and a criminal fine.

What Is a Trade Secret?

A trade secret is business information that has economic value, is not generally known, and which the owner wishes to keep secret and has taken reasonable measures to protect. Examples:

• Customer and supplier lists, price and cost information,
• Production methods, formulas, source code,
• Business plans, tender bids, marketing strategies.

Elements of the Offence

• The offender must have accessed the information by virtue of their position, duty, profession or art; employees, managers, consultants and business partners are covered.
• The information must have been given or disclosed to unauthorised persons.
• Persons who unlawfully obtain and use the information are also punished.
• The basic form requires a complaint.
• Disclosure to a foreigner not resident in Turkey or their agents carries a heavier penalty and does not require a complaint.

Relationship with Unfair Competition

Unlawfully obtaining and using trade secrets is also unfair competition under the Turkish Commercial Code. Besides the criminal route, the company may sue for a declaration, injunction and damages for unfair competition, and seek an interim injunction.

What Should the Company Do?

• Prevention: Confidentiality agreements, restricted access, marking documents “confidential” and informing employees; these also prove the secret nature of the information.
• Departure process: Return of the departing employee’s devices, revocation of access and review of recent data transfers; see Employee Non-compete.
• After an incident: Preserving evidence through an internal investigation, not missing the six-month complaint deadline and preservation of evidence.

If trade secrets include personal data, data-related offences may also arise.