Introduction

Today’s blog post is the second blog post in a series focusing on European trade secret law issues and trends. As announced, we will address practical questions and offer insights into how Belgian courts interpret and apply various aspects of the Belgian Trade Secrets Act[1], particularly as it relates to requirements for trade secret protection.

Under the Trade Secrets Act, any information which (1) is secret; (2) has commercial value because it is secret; and (3) has been subject to reasonable steps to keep it secret can qualify as a trade secret.[2] Belgian courts have recently provided significant clarifications regarding these requirements. This blog posts aims to distill these developments, focusing on the conditions under which information is deemed secret and possesses commercial value.

Trend 4: high burden of proof to demonstrate that the information is considered secret

For information to qualify as a trade secret under Belgian law, it must be secret. This requirement, while seemingly straightforward, involves nuanced considerations.

  • Information frequently communicated to third parties cannot be secret. For example, a recruitment company’s questionnaire communicated to its customers is not secret, as the information has become generally known.[3]
  • Information that can be accessed by the public, such as data on a public website or information required to be disclosed to clients, is not secret. For instance, published financial statements available to the public do not constitute secret information (even though these financial statements were also part of a confidential merger).[4] In the same token, price lists known to customers and competitors are not considered secret.[5] In contrast, detailed information about innovative production lines can be considered secret if it is not generally known or easily accessible.[6]
  • Not all confidentially communicated information qualifies as “secret”. A confidentiality obligation is a step in the right direction but the mere presence of it is not a silver bullet either. For instance, confidentiality obligations in the context of an employment agreement is an insufficient guarantee when the holder of alleged trade secret has already disclosed it to a third party. If this is the case, the information is no longer secret, notwithstanding the confidentiality obligation contained within an employment agreement.

In any event, the burden of proof lies with the holder of the trade secret. Belgian case law is very strict in this respect.[7] General descriptions are often found to be insufficient and precise identification and documentary evidence are required to meet this threshold.[8] Analysis of the case law suggests that this is a difficult to overcome hurdle for many trade secret holders, as often claims based on trade secrets fail to meet these stringent requirements.

Trend 5: broad interpretation of commercial value

For information to be protected as a trade secret, it must not only be secret but also have commercial value arising from its secrecy. This is assessed on a case-by-case basis. From the case law on the subject, commercial value of information is broadly interpreted. Information has commercial value if it provides a competitive advantage to its holder, as a result of which the holder has a commercial interest in keeping it secret. This commercial interest implies that the holder of the trade secret can monetize that information. Put differently, this requirement means “that there must be a market for this information and that there must be a willingness on the part of third parties (e.g. competitors) to pay for such information.”[9]

For example, a customer list can hold commercial value in so far it allows for targeted sales or provides for a competitive edge. On the other hand, data that cannot be monetized, such as passwords for ex-customers, lacks commercial value.

Trend 6: Legal and technical measures must be actively implemented and enforced

In order for information to qualify as a trade secret, companies must take reasonable steps/measures to keep its information secret. The interpretation of what is considered “reasonable” is highly dependent on the court’s appreciation and the specific facts of each case. Despite the importance of reasonable measures, few decisions go into the nitty gritty of this requirement. This is likely because many claims based on trade secretes fail on other grounds, such as failing to meet, or sufficiently prove, the secrecy and commercial value-requirements, as discussed above. The following elements can nevertheless be distilled:

  • Legal measures: Courts have found that including confidentiality clauses in employment contracts and having mandatory provisions in labor regulations can constitute as reasonable measures.[10] Similarly, confidentiality obligations in contracts with suppliers, along with investments in data security, are reasonable measures. These clauses often only apply during the contractual term and not afterwards.[11] Courts have emphasized that reasonable measures must extend beyond the period of employment to be effective.
  • Examples of technical measures include: providing personal and secret passwords, providing a badge system for restricted physical access, secure environments on company laptops, deactivation of USB ports, restricted internet access, ….[12] Case law also recognized the importance of control measures, such as internal alarms for abnormal file uploads or email transmissions.[13] These measures, combined with legal preventive measures like detailed confidentiality clauses and internal security policies, were considered sufficient to meet the requirement of reasonable measures.

In any event, merely having legal or technical measures in place is not enough. These measures must be actively implemented and enforced. Courts have ruled that theoretical security measures without practical enforcement do not meet the legal standard of “reasonable measures”. In a notable case, the President of the Ghent Enterprise Court ruled that while having a confidentiality clause in place, as well encryption measures, which meant that the information was theoretically secure, the plaintiff failed to enforce these measures adequately.[14] The Court found that the plaintiff was negligent in verifying access controls and acting promptly when security breaches were suspected. Therefore, both legal and technical measures must be actively enforced to meet the requirement of reasonable measures under Article I.17/1 Belgian Code of Economic Law. Companies are forewarned: gold-plated policies full of bells and whistles, do not protect your trade secrets, if people do not actually follow them.

Conclusion

Belgian case law on trade secrets continues to evolve, reflecting broader European trends while maintaining specific national characteristics. The distinction between confidential information and trade secrets is crucial for ensuring fair competition. Businesses should adopt preventive and control measures to safeguard their trade secrets, as well as develop effective strategies to enforce technical and legal measures.

Stay tuned for our next blog post in the trade secrets series, where we will delve into unlawful use , available remedies, and the burden of proof for trade secret misappropriation.

For further information or specific legal advice, please contact J.-D. Lindemans, M. Mariano, and E. Van Bogget.

—This blog post is based on the article “Protection of trade secrets before the Belgian courts: overview of case law” by J.-D. Lindemans, M. Mariano, and E. Van Bogget, published in Revue de droit intellectuel – L’ingénieur conseil / Tijdschrift intellectuele eigendom, 2024/3 – 6 December 2024.


[1] Act of July 30, 2018 on the protection of trade secrets, which is a transposition of Directive 2016/943 of June 8, 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.

[2] Article I.17/1 WER.

[3] Enterprise Court Antwerp 17 March 2022, BV CoreTalents/ CV We and Work, unpub.

[4] Dutch-speaking Enterprise Court Brussels 20 November 2023, A/19/04686, unpub.

[5] President of the Enterprise Court Antwerp (section Antwerp) 20 November 2019, Madzuli/ Yameco, onuitg; Enterprise Court Antwerp (section Antwerp) 24 oktober 2019, Hofline Electro & Cabling / Lectro, 7.

[6] Enterprise Court Antwerp 9 May 2019, Govaerts Recycling, unpub., 8.

[7] Enterprise Court Antwerp (section Antwerp) 29 June 2023, May Courier International BV/ Atlas Imobiliare SRL, unpub.; Court of Appeal Brussels 11 March 2021, 2020/AR/1367, unpub., 13.

[8] Court of Appeal Antwerp 26 mei 2021, IRDI 2021/3, 222.

[9] President of the Dutch-speaking Brussels Enterprise Court 5 November 2020, Netcon bv/ Digital Stewards vof, Jaarboek Markpraktijken 2020, afl. 1, 644.

[10] President of the Ghent Enterprise Court (section Ghent) 10 June 2020, A/20/00248, unpub., p.8.

[11] President of the Ghent Enterprise Court (section Ghent) 26 August 2020, A/19/02151, unpub., p. 8; confirmed on appeal: Court of Appeal Ghent, 27 juni 2022, 2020/AR/1714, unpub..

[12] President of the Dutch-speaking Brussels Enterprise Court 24 February 2022, A/21/03327, unpub..

[13] Ibid.

[14] President of the Ghent Enterprise Court (section Ghent) 13 March 2019, A/19/00515, unpub..