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Whistle-blowers cannot disclose trade secrets except in public interest

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Whistle-blowers cannot disclose trade secrets except in public interest

Whistle-blowers cannot disclose trade secrets

The EU (Protection of Trade Secrets) Regulations 2018 has also amended the Protected Disclosures Act 2014, a Mason Hayes & Curran update explains.

Where it is alleged that a disclosure relates to a trade secret, it will only constitute a protected disclosure where the worker can demonstrate that the purpose of the disclosure was the protection of the general public interest. 

High standard

However, this is a high standard that is likely to be unattainable by most workers because whistle-blowers are often motivated by causes ancillary to the public interest.

These can include situations where they have issues with their employers or co-workers.

Prior to this regulation, motivations were irrelevant in the decision as to whether a disclosure was protected.

Now, a whistle-blower’s motivation is up for scrutiny where revealing a trade secret is involved.

Criminal offence

According to the Regulations, a whistle-blower who makes a protected disclosure of a trade secret who cannot prove that they were motivated by the public interest can be liable to a criminal offence punishable by up to three years in prison and a fine of up to €50,000. 

MH&C writes that, arguably, the key to the effectiveness of the Protected Disclosures Act 2014 was that the motivation of the whistle-blower is irrelevant.

This change in the law is significant because it is likely to act as a deterrent to whistle-blowers coming forward.

Employers should be aware of this change to the law and should, when receiving a protected disclosure, consider if the protected disclosure contains information which might qualify as a trade secret.

Prove

If this is the case, then the whistle-blower will have to prove that they were motivated by the public interest in order to gain the protections of the Protected Disclosures Act 2014

In addition, an employer now has a range of options available to it if a trade secret is used contrary to the Regulations, such as civil claims for damages and potentially, injunctive relief.

In addition, employers should consider taking steps to protect their trade secrets such as comprehensive non-disclosure and confidentiality agreements.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland