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Court decision regarding transfer of confidential information to third parties

In case the Employee breaches a clause of confidentiality the Employer has a right to claim for the compensation of damages it has suffered. In order for the Employer to implement this right, the Manager of Company shall make sure the following tasks has been implemented:
  • The local documents of the Company states which information shall be treated as confidential information.
  • The Employee is instructed on what information the Employer considers to be confidential.
  • Appropriate measures have been taken to keep this information protected (including but not limited to establishing a clause of confidentiality in the Employment Contract or Local Regulations). 
The Employee is liable for breach of confidentiality clause if it is proven that there was the Employee‘s illegal activity, fault, damages suffered by the Employer and causal relationship between the activity and the damages.

Noteworthy, it is enough for Employee to breach the confidentiality clause set in the Employment Contract to consider his/her activity illegal. The Court decision judged the illegal activity limited to the transfer of confidential information to the third party. The illegal activity in this case concluded of forwarding the emails with confidential information that had been sent by the Employer to the Employee from professional email address to personal and third parties‘ email addresses after the termination of employment.  The use of this information was not evaluated by the Court.

The Case Law provides that penalty agreed in the Contract shall be considered as future damages of the Company set in advance. Therefore, the creditor shall have a right to claim for a compensation agreed without additional calculation of the amount. Still, the Court shall precise the amount of compensation in accordance to circumstances of the case – the Court may reduce the penalty agreed if the amount required does not meet the criteria of fairness, reasonableness and integrity.


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