Criminal defence throughout Spain · offices in Madrid and Alicante
An employee leaves with the client portfolio or the source code. Criminal protection reaches only as far as your prior diligence reached. Preserve the evidence now.
In brief. Articles 278 to 280 punish the seizure, disclosure and use of trade secrets, and the Trade Secrets Act defines what a secret is: information not generally known, valuable because it is secret, and subject to reasonable measures to keep it secret. That last requirement sinks most cases: the law does not protect valuable information, it protects the valuable information you protected.
Articles 278 to 280 punish the seizure of data or documents constituting a trade secret, their disclosure and their use. The Trade Secrets Act defines the secret: information not generally known, with value because it is secret, and subject to reasonable measures to keep it secret. That last requirement is what sinks most cases: if the client list sat in a shared folder open to the whole workforce, without access controls or confidentiality undertakings, the criminal case is weak whatever the disloyalty.
One line must be kept clear: the worker’s professional experience and knowledge are theirs, and they take them away legitimately. What they may not take is the company’s information. That distinction is the heart of these proceedings. What we see in practice: the salesperson who leaves and whose clients begin switching supplier one by one weeks later; the technician who takes the drawings, the source code or the pricing database; the manager who, before leaving, downloads massively to an external drive or forwards to a personal mailbox; and the competitor that hires an entire team, and with it everything the team knew and had.
| Conduct | Article | Penalty framework | Key factor |
|---|---|---|---|
| Seizure of secrets | 278.1 | 2 – 4 years and fine | Taking of data, documents or media |
| Seizure with disclosure | 278.2 | 3 – 5 years and fine | Dissemination or transfer to third parties |
| Disclosure by an insider | 279 | 2 – 4 years and fine | Legal or contractual duty of reserve |
| Use for own benefit (insider) | 279 in fine | Penalty in its lower half | Use without dissemination |
| Use by a knowing third party | 280 | 1 – 3 years and fine | Knowledge of the unlawful origin |
| Reasonable measures | LSE | Requirement of the offence | Their absence is the usual ground of dismissal |
| Civil route | LSE | Cease-and-desist, verification, damages | Often faster and more effective |
| Legal person | 31 bis | Fine · suspension · dissolution | The hiring company’s exposure |
Penalty ranges are indicative and set out the ordinary framework; the sentence actually imposed depends on the circumstances of each case.
The law does not protect valuable information. It protects the valuable information you protected. At trial the question will be exactly that: what did you do to keep it secret? The measures the courts consider reasonable, whose absence is the usual reason for dismissal: access control with individual credentials and logging; confidentiality undertakings signed with sales staff and technicians, not only with managers; classification of the information and technical measures proportionate to its value; and exit protocols on departures. Everything depends on what remains recorded, and those logs are overwritten in days: forensic preservation of the systems, with chain of custody, is always the first step.
What almost never works is the reflex criminal complaint, filed in the heat of the moment and without evidence, which is dismissed and leaves the company in a worse position than at the start. In many cases the optimal strategy combines the criminal route with the civil tools of the Trade Secrets Act, or begins with the civil one. And where the case is weak because the information was not specially protected, we say so: better to know before investing two years in proceedings.
Companies facing the departure of key staff with information: preservation, verification and cease-and-desist measures.
Companies incorporating profiles from competitors: written warnings, verification and defence where investigated.
Professionals accused of taking information: the line between their own experience and the company’s information.
Departures of founders and partners with know-how: coordination of the corporate, employment and criminal planes.
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Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.
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