Federal Law On Commercial Secrets.
Russian Federation
Federal Law «On Commercial Secrets»
Adopted by the State Duma on July 9, 2004
Approved by the Federation Council on July 15, 2004
Article 1. Objectives and scope of this Federal Law
1. This Federal Law regulates relations related to classifying information as a commercial secret, transferring such information, protecting its confidentiality in order to ensure a balance of interests between the holders of information constituting a commercial secret and other participants in regulated relations, including the state, in the market for goods, works, services and preventing unfair competition, and also defines information that cannot constitute a commercial secret.
2. The provisions of this Federal Law apply to information constituting a commercial secret, regardless of the type of medium on which it is recorded.
3. The provisions of this Federal Law shall not apply to information classified in the established manner as a state secret, in respect of which the provisions of the legislation of the Russian Federation on state secrets shall apply.
Article 2. Legislation of the Russian Federation on commercial secrets
The legislation of the Russian Federation on commercial secrets consists of the Civil Code of the Russian Federation, this Federal Law, and other federal laws.
Article 3. Basic Concepts Used in This Federal Law
The following basic concepts shall be used for the purposes of this Federal Law:
1) commercial secret — confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits;
2) information constituting a commercial secret — scientific, technical, technological, production, financial, economic or other information (including production secrets (know-how)), which has actual or potential commercial value due to its being unknown to third parties, to which there is no free access on a legal basis and in relation to which the owner of such information has introduced a commercial secret regime;
3) trade secret regime — legal, organizational, technical and other measures taken by the owner of information constituting a trade secret to protect its confidentiality;
4) owner of information constituting a trade secret — a person who owns information constituting a trade secret, on a legal basis, has restricted access to this information and established a trade secret regime with respect to it;
5) access to information constituting a commercial secret — familiarization of certain persons with information constituting a commercial secret, with the consent of its owner or on another legal basis, subject to maintaining the confidentiality of this information;
6) transfer of information constituting a commercial secret — transfer of information constituting a commercial secret and recorded on a tangible medium, by its owner to the counterparty on the basis of an agreement in the amount and on the terms stipulated by the agreement, including the condition on the counterparty's adoption of measures established by the agreement to protect its confidentiality;
7) counterparty — a party to a civil law agreement to which the owner of information constituting a commercial secret has transferred this information;
8) provision of information constituting a commercial secret, — transfer of information constituting a commercial secret and recorded on a tangible medium, by its owner to state authorities, other state bodies, local government bodies for the purpose of performing their functions;
9) disclosure of information constituting a commercial secret — an action or inaction as a result of which information constituting a commercial secret, in any possible form (oral, written, other form, including using technical means) becomes known to third parties without the consent of the owner of such information or contrary to an employment or civil contract.
Article 4. The right to classify information as information constituting a commercial secret, and methods of obtaining such information
1. The right to classify information as information constituting a commercial secret and to determine the list and composition of such information belongs to the owner of such information, taking into account the provisions of this Federal Law.
2. Information independently obtained by a person during research, systematic observations or other activities is considered to be obtained legally despite the fact that the content of such information may coincide with the content of information constituting a commercial secret, the owner of which is another person.
3. Information constituting a commercial secret, received from its owner on the basis of a contract or other legal basis, is considered to have been obtained legally.
4. Information constituting a commercial secret, the owner of which is another person, shall be considered to have been obtained illegally if it was obtained with the intentional violation of the measures taken by the owner of the information constituting a commercial secret to protect the confidentiality of this information, and also if the person receiving this information knew or had sufficient grounds to believe that this information constituted a commercial secret, the owner of which is another person, and that the person transmitting this information did not have a legal basis for transmitting this information.
Article 5. Information that may not constitute a commercial secret
A commercial secret regime may not be established by persons engaged in entrepreneurial activity with respect to the following information:
1) contained in the constituent documents of a legal entity, documents confirming the fact of entering records about legal entities and individual entrepreneurs in the relevant state registers;
2) contained in documents granting the right to engage in entrepreneurial activity;
3) on the composition of the property of a state or municipal unitary enterprise, state institution and on their use of funds from the relevant budgets;
4) on environmental pollution, the state of fire safety, the sanitary-epidemiological and radiation situation, food safety and other factors that have a negative impact on ensuring the safe operation of production facilities, the safety of each citizen and the safety of the population as a whole;
5) on the number and composition of employees, the remuneration system, working conditions, including labor protection, indicators of industrial injuries and occupational diseases, and the availability of vacancies;
6) on employers' arrears in wages and other social payments;
7) on violations of the legislation of the Russian Federation and facts of prosecution for committing these violations;
8) on the conditions of competitions or auctions for the privatization of state or municipal property;
9) on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and remuneration of their employees, on the use of unpaid labor of citizens in the activities of a non-profit organization;
10) on the list of persons entitled to act without a power of attorney on behalf of a legal entity;
11) the mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.
Article 6. Provision of information constituting a commercial secret
1. The owner of information constituting a commercial secret, upon a reasoned request of a government body, another state body, or a local government body, shall provide them with information constituting a commercial secret free of charge. The reasoned request must be signed by an authorized official and contain an indication of the purpose and legal basis for requesting information constituting a commercial secret, and the period for providing this information, unless otherwise established by federal laws.
2. In the event that the owner of information constituting a commercial secret refuses to provide it to a government body, another state body, or a local government body, these bodies shall have the right to request this information through legal proceedings.
3. The holder of information constituting a commercial secret, as well as state authorities, other state bodies, local government bodies that have received such information in accordance with Part 1 of this article, are obliged to provide this information upon request of courts, prosecutorial bodies, preliminary investigation bodies, inquiry bodies in cases under their jurisdiction, in the manner and on the grounds stipulated by the legislation of the Russian Federation.
4. Documents submitted to the bodies specified in parts 1 and 3 of this article and containing information constituting a commercial secret must be marked «Commercial Secret» with an indication of its owner (for legal entities — the full name and location, for individual entrepreneurs — the last name, first name, patronymic of the citizen who is an individual entrepreneur, and place of residence).
Article 7. Rights of the owner of information constituting a commercial secret
1. The rights of the owner of information constituting a commercial secret arise from the moment he establishes a commercial secret regime with respect to such information in accordance with Article 10 of this Federal Law.
2. The owner of information constituting a commercial secret has the right:
1) establish, amend and cancel in writing the commercial secret regime in accordance with this Federal Law and a civil law contract;
2) use information constituting a commercial secret for their own needs in a manner that does not contradict the legislation of the Russian Federation;
3) permit or prohibit access to information constituting a commercial secret, determine the procedure and conditions for access to this information;
4) introduce into civil circulation information constituting a commercial secret, on the basis of agreements providing for the inclusion of conditions on the protection of the confidentiality of this information;
5) demand from legal entities and individuals who have received access to information constituting a commercial secret, government bodies, other government bodies, local government bodies to which information constituting a commercial secret has been provided, compliance with obligations to protect its confidentiality;
6) demand that persons who have gained access to information constituting a commercial secret as a result of actions carried out accidentally or by mistake, protect the confidentiality of this information;
7) protect, in accordance with the procedure established by law, their rights in the event of disclosure, illegal receipt or illegal use by third parties of information constituting a commercial secret, including demanding compensation for damages caused in connection with the violation of their rights.
Article 8. Holder of information constituting a commercial secret obtained within the framework of labor relations
1. The holder of information constituting a commercial secret obtained within the framework of labor relations is the employer.
2. If an employee, in connection with the performance of his/her job duties or a specific assignment from the employer, receives a result that is capable of legal protection as an invention, utility model, industrial design, integrated circuit topology, computer program or database, the relationship between the employee and the employer shall be regulated in accordance with the legislation of the Russian Federation on intellectual property.
Article 9. Procedure for establishing a commercial secret regime when performing a government contract for government needs
A state contract for the performance of research, development, technological or other work for federal state needs or the needs of a constituent entity of the Russian Federation must define the volume of information recognized as confidential, and must also regulate issues related to the establishment of a commercial secret regime with respect to the information received.
Article 10. Protection of Confidentiality of Information
1. Measures to protect the confidentiality of information taken by its owner must include:
1) determining the list of information constituting a commercial secret;
2) restricting access to information constituting a commercial secret by establishing a procedure for handling this information and monitoring compliance with such procedure;
3) registration of persons who have gained access to information constituting a commercial secret, and (or) persons to whom such information has been provided or transferred;
4) regulation of relations regarding the use of information constituting a commercial secret by employees on the basis of employment contracts and by counterparties on the basis of civil law contracts;
5) application of the «Commercial Secret» classification to tangible media (documents) containing information constituting a commercial secret, indicating the owner of this information (for legal entities — the full name and location, for individual entrepreneurs — the last name, first name, patronymic of the citizen who is an individual entrepreneur, and place of residence).
2. The regime of commercial secrets shall be considered established after the owner of the information constituting a commercial secret has taken the measures specified in Part 1 of this Article.
3. An individual entrepreneur who is the owner of information constituting a commercial secret and does not have employees with whom employment contracts have been concluded shall take the measures to protect the confidentiality of the information specified in Part 1 of this Article, with the exception of paragraphs 1 and 2, as well as the provisions of paragraph 4 concerning the regulation of labor relations.
4. Along with the measures specified in Part 1 of this Article, the owner of information constituting a commercial secret has the right to apply, if necessary, means and methods of technical protection of the confidentiality of this information, and other measures that do not contradict the legislation of the Russian Federation.
5. Measures to protect the confidentiality of information are recognized as reasonably sufficient if:
1) access to information constituting a commercial secret by any person without the consent of its owner is excluded;
2) the possibility of using information constituting a commercial secret by employees and transferring it to contractors without violating the commercial secret regime is ensured.
6. The commercial secret regime may not be used for purposes that contradict the requirements of protecting the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and state security.
Article 11. Protection of confidentiality of information within the framework of labor relations
1. In order to protect the confidentiality of information, the employer is obliged to:
1) familiarize, against signature, the employee whose access to information constituting a commercial secret is necessary for the performance of his work duties, with the list of information constituting a commercial secret, the holders of which are the employer and his counterparties;
2) familiarize, against signature, the employee with the commercial secret regime established by the employer and with the measures of liability for violating it;
3) create the necessary conditions for the employee to comply with the commercial secret regime established by the employer.
2. An employee's access to information constituting a commercial secret is carried out with his consent, unless this is provided for by his job responsibilities.
3. In order to protect the confidentiality of information, the employee is obliged to:
1) comply with the commercial secret regime established by the employer;
2) not to disclose information constituting a commercial secret, the owners of which are the employer and his counterparties, and not to use this information for personal purposes without their consent;
3) not to disclose information constituting a commercial secret, the owners of which are the employer and his counterparties, after the termination of the employment contract during the period stipulated by the agreement between the employee and the employer concluded during the term of the employment contract, or within three years after the termination of the employment contract, if the said agreement was not concluded;
4) compensate the employer for damages caused if the employee is guilty of disclosing information constituting a commercial secret that became known to him in connection with the performance of his work duties;
5) transfer to the employer, upon termination or cancellation of the employment contract, the employee's available tangible information carriers containing information constituting a commercial secret.
4. The employer has the right to demand compensation for damages caused by a person who has terminated employment relations with him, if this person is guilty of disclosing information constituting a commercial secret, access to which this person received in connection with the performance of his work duties, if the disclosure of such information occurred within the period established in accordance with paragraph 3 of part 3 of this article.
5. Damage or losses caused shall not be compensated by the employee or the person who terminated the employment relationship if the disclosure of information constituting a commercial secret was a consequence of force majeure, extreme necessity or the failure of the employer to fulfill the obligation to ensure the regime of commercial secrets.
6. The employment contract with the head of the organization must provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality.
7. The head of the organization shall compensate the organization for losses caused by his culpable actions in connection with the violation of the legislation of the Russian Federation on commercial secrets. In this case, losses are determined in accordance with civil legislation.
8. An employee has the right to appeal in court against the illegal establishment of a commercial secret regime with respect to information to which he has gained access in connection with the performance of his work duties.
Article 12. Protection of the confidentiality of information within the framework of civil-law relations
1. Relations between the owner of information constituting a commercial secret and his counterparty in the part concerning the protection of the confidentiality of information are regulated by law and contract.
2. The agreement must define the conditions for protecting the confidentiality of information, including in the event of reorganization or liquidation of one of the parties to the agreement in accordance with civil law, as well as the obligation of the counterparty to compensate for damages in the event of disclosure of this information contrary to the agreement.
3. Unless otherwise provided by the agreement between the owner of information constituting a commercial secret and the counterparty, the counterparty, in accordance with the legislation of the Russian Federation, independently determines the methods of protecting information constituting a commercial secret transferred to it under the agreement.
4. The counterparty is obliged to immediately inform the owner of information constituting a commercial secret of any fact of disclosure or threat of disclosure, illegal acquisition or illegal use of information constituting a commercial secret by third parties committed by the counterparty or made known to it.
5. The owner of information constituting a commercial secret, transferred by him to the counterparty, until the expiration of the contract may not disclose information constituting a commercial secret, nor unilaterally terminate the protection of its confidentiality, unless otherwise provided by the contract.
6. A party that fails to ensure, in accordance with the terms of the agreement, the protection of the confidentiality of information transferred under the agreement, is obliged to compensate the other party for losses, unless otherwise provided by the agreement.
Article 13. Protection of the confidentiality of information when it is provided
1. State authorities, other state bodies, local government bodies in accordance with this Federal Law and other federal laws are obliged to create conditions that ensure the protection of the confidentiality of information provided to them by legal entities or individual entrepreneurs.
2. Officials of state authorities, other state bodies, local government bodies, state or municipal employees of the said bodies, without the consent of the owner of information constituting a commercial secret, shall not have the right to disclose or transfer to other persons, state authorities, other state bodies, local government bodies information that has become known to them by virtue of the performance of official (service) duties and that constitutes a commercial secret, except for cases stipulated by this Federal Law, and shall also not have the right to use this information for selfish or other personal purposes.
3. In the event of a breach of confidentiality of information by officials of state authorities, other state bodies, local government bodies, state and municipal employees of the said bodies, these persons shall be liable in accordance with the legislation of the Russian Federation.
Article 14. Liability for Violation of This Federal Law
1. Violation of this Federal Law entails disciplinary, civil, administrative or criminal liability in accordance with the legislation of the Russian Federation.
2. An employee who, in connection with the performance of his/her work duties, has gained access to information constituting a commercial secret, the owners of which are the employer and his/her counterparties, in the event of intentional or careless disclosure of this information, in the absence of elements of a crime in the actions of such an employee, bears disciplinary liability in accordance with the legislation of the Russian Federation.
3. State authorities, other state bodies, and local government bodies that have gained access to information constituting a commercial secret shall bear civil liability to the owner of the information constituting a commercial secret for the disclosure or illegal use of this information by their officials, state or municipal employees of the said bodies who have become aware of it in connection with the performance of their official (service) duties.
4. A person who used information constituting a commercial secret and did not have sufficient grounds to consider the use of this information illegal, including having gained access to it as a result of an accident or error, cannot be held liable in accordance with this Federal Law.
5. At the request of the owner of information constituting a commercial secret, the person specified in Part 4 of this Article shall be obliged to take measures to protect the confidentiality of the information. If such person refuses to take the specified measures, the owner of the information constituting a commercial secret shall have the right to demand protection of his rights in court.
Article 15. Liability for failure to provide government bodies, other government bodies, and local government bodies with information constituting a commercial secret
Failure by the owner of information constituting a commercial secret to comply with the legal requirements of government bodies, other state bodies, local government bodies to provide them with information constituting a commercial secret, as well as obstruction of the receipt of said information by officials of these bodies, shall entail liability in accordance with the legislation of the Russian Federation.
Article 16. Transitional Provisions
The labels affixed to tangible media prior to the entry into force of this Federal Law and indicating the content of information constituting a commercial secret therein shall remain in effect provided that measures to protect the confidentiality of said information are brought into compliance with the requirements of this Federal Law.
President
of the Russian Federation
V. PUTIN