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UK Government responds to technical consultation on the Trade Secrets Directive

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Summary: Ahead of its deadline to implement the Trade Secrets Directive by 9 June 2018, the UK Government has confirmed in its response to the technical consultation that it has made further drafting changes to the proposed UK regulations which will be made public when laid before Parliament.

In particular, a number of definitions which create confusion or restrict the application of the Directive are to be re-drafted. Following a query on the intersection between the definition of ‘infringer’ and criminal proceedings for conspiracy, the Government has clarified that the proposed regulations will apply solely to civil measures.  Of concern to respondents were issues arising with the proposed timelines in which to bring proceedings. The Government has now confirmed that section 36 of the Limitation Act 1980 and the Scottish equivalent, which permit, in certain circumstances, the disapplication of limitation periods to injunctions and other equitable reliefs, will be specifically disapplied from the proposed regulations.

The interplay between the common law action for breach of confidence and the proposed regulations will be clarified and where provisions of the Directive are already provided for, including under current legislation, then these will not be implemented. For instance, the courts will retain their discretion in awarding damages that are fair and proportionate and in preserving the confidentiality of trade secrets in legal proceedings, the latter in consideration of the proposed regulations.

Where there are gaps, as identified by the commentary that court rules do not currently provide for the necessary time frames in which a claim must be made following an interim order, the Government’s intention is to clarify these by implementing the relevant Articles fully. Overlaps, whether between the proposed  regulations themselves or with the prevailing common law and legislative positions will exist in the Government’s attempts to ensure the Directive is applied consistently across the UK jurisdictions. Even though the courts of England and Wales already have the power to order the publication of judgements in actions for breach of confidence this ability has not yet been exercised in other UK jurisdictions and the Government’s response will be to follow the Directive more closely in the next turn of the proposed regulations to fully enable this.

This article was written by Technology & Commercial Senior Associate Ash von Schwan and Trainee Aveline Orban.

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