Trade secrets in Belgium under the Law on the Protection of Trade Secrets 2018

In Belgium, the protection of trade secrets plays an extremely important role in maintaining the competitive advantage of businesses. Trade secrets, including recipes, production processes, customer information, and other sensitive data, are valuable intangible assets that help businesses differentiate their products and services and build their reputation in the market. The effective protection of trade secrets not only helps businesses avoid unfair competition but also contributes to promoting innovation, creativity and sustainable economic development of Belgium. Viet An Law would like to guide customers on how to protect trade secrets in Belgium through the article below.

Legal basis for protecting trade secrets in Belgium

Since the EU Trade Secrets Directive (2016/943) was translated into national law and came into force in Belgium in 2018, the legal framework for trade secret protection here has changed significantly. The Belgian Trade Secrets Act, enacted in 2018, has brought a more comprehensive protection mechanism for trade secrets. After more than 5 years of enforcement, it is necessary to evaluate the effectiveness of this law to ensure that it still meets the increasing protection requirements of the modern business environment.

Definition of trade secrets in Belgium according to the Law on the Protection of Trade Secrets 2018

Before the Trade Secrets Directive was translated into law in 2018, Belgian law did not have a specific definition of “trade secrets”. Currently, trade secrets are quite broadly defined and include mainly information, which may include but are not limited to business know-how, factory secrets, business processes, trade information, market research, customer lists, business plans, etc  knowledge from previous projects, price lists, and technology information. The Trade Secrets Act does not impose any restrictions on the nature or form of protected information, nor does it require protected information to be recorded on a medium (paper or digital).

To be protected as a trade secret, the information must meet the following three conditions simultaneously:

• The information must be confidential: The information must not be public and cannot be easily accessed by anyone who wants to obtain it. Confidentiality must be considered on a case-by-case basis, based on all the specific circumstances of the case, such as the specificity of the industry involved. Confidentiality must be assessed from the perspective of the relevant professional group, not from the perspective of an outsider. In addition, the confidentiality of confidential information must be evaluated comprehensively. This means that when different components of information are publicly available or easily accessible to people in groups who regularly handle that type of information, but not in their combination (as a whole), the information as a whole remains secret. Finally, trivial information and experience and skills gained by employees in the course of their normal work are not included in the definition of trade secrets.
• Information has commercial value because it is confidential: This means that the disclosure of the secret must cause damage to the rightful owner of the information and the person who performs or benefits from the disclosure of the secret can benefit from it. No such information is required to be commercially valuable. However, it is essential, but sufficient, that a trade secret gives a competitive advantage to its owner, so that he has a commercial interest in keeping the information confidential.
• The information must be protected by reasonable measures in such circumstances, by the person who is lawfully controlling the information, in order to maintain confidentiality: “Reasonable measures” can take various forms, such as contractual terms, physical or virtual security mechanisms, register a trade secret with the Benelux Intellectual Property Office using i-DEPOT,® etc. One can think of security provisions in a commercial contract or in an employment contract, the installation of surveillance cameras, identity verification, control of access to the premises, the use of safes, the implementation of security or encryption of files or emails. Whether there are sufficient reasonable measures to keep the information confidential must be evaluated on a case-by-case basis, based on the specific circumstances of the case. This essential condition is often overlooked, and failure to take sufficient reasonable measures will result in a refusal to protect trade secrets.

Guidelines for the protection of trade secrets in Belgium under the Law on the Protection of Trade Secrets 2018

Understand the legal framework

• EU Trade Secrets Directive (2016/943): This is the main legal basis for protecting trade secrets in Belgium and other EU member states. This directive provides a general definition of trade secrets and establishes minimum standards for protection.
• Belgian National Law: Belgium has converted the Trade Secrets Directive into national law, adding specific regulations to align with its legal system.

Clearly define trade secrets

• Detailed Listing: Make a complete list of information that is considered a trade secret, including formulas, production processes, customer information, business plans, and more.
• Security classification: Classify information according to sensitivity level to apply appropriate protections.

Take protective measures

• Confidentiality Agreements: Entering into confidentiality agreements with employees, partners, suppliers, and anyone with access to confidential information.
• Access Management System: Restrict access to confidential information to only those who need it. Use passwords, encryption, and other authentication tools.
• Physical Security: Protect paper documents and devices containing confidential information from unauthorized access.
• Cybersecurity: Invest in robust cybersecurity systems to prevent cyberattacks.
• Employee awareness: Organize training courses to raise employee awareness of the importance of protecting trade secrets and related regulations.
• Registration of protection: Registration of patents, trademarks, or industrial designs to protect specific aspects of trade secrets.