Article 278 Spanish Criminal Code: Discovery of trade secrets

Article 278 punishes the appropriation of data, documents or media relating to a trade secret, or the use of the means of Article 197.1, in order to discover it, with an aggravated frame where the secrets discovered are disseminated, revealed or transferred to third parties.

Wording of Article 278 of the Spanish Criminal Code

Elements of the offence

1. The existence of a trade secret, that is, information of business value which is not publicly known and in respect of which reasonable measures of protection have been adopted.
2. An act of appropriation of data, documents, computer media or other objects relating to it, or the use of one of the means of Article 197.1.
3. A subjective element, namely the purpose of discovering the secret.
4. In paragraph 2, the dissemination, revelation or transfer of the secrets to third parties.

Defence strategy

Whether the information is a trade secret. The offence presupposes information which is genuinely secret and of business value. Information which is publicly accessible, which is known within the sector or in respect of which the undertaking adopted no measures of protection does not qualify, and the burden of establishing those measures lies with the prosecution.

Lawful access by an employee. An employee who accesses information in the ordinary course of duties does not appropriate it. The dividing line is the access profile granted and the removal of the information from the sphere of the undertaking, so the internal documentation on permissions is the decisive evidence.

Absence of the purpose of discovery. Paragraph 1 requires the purpose of discovering the secret. The retention of documents in order to found a claim in employment or commercial proceedings has repeatedly been held to lack that purpose, and the context of the retention must be documented.

Lawfulness of the evidence obtained. Investigations of this kind habitually rest upon the forensic examination of corporate devices. The scope of the internal policy on the use of those devices, the notice given to the employee and the chain of custody of the copies are the points upon which the validity of the evidence is contested.

• Article 197 CP: disclosure of secrets and privacy
• Trade secrets offences in Spain
• Corporate internal investigations
• Company offences in Spain

This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.