Criminal Lawyers in Business Secrets Defense

The crimes relating to discovery and disclosure of trade secrets, regulated in Arts. 278 to 280 of the Spanish Criminal Code, punish the unlawful appropriation, espionage, dissemination or exploitation of reserved business information with competitive value. The protected legal interest is twofold: on one hand, the trade secret as intangible patrimonial asset covered by Law 1/2019, of 20 February, on Trade Secrets, which transposed Directive 2016/943/EU; on the other, the rules of fair competition and trust in professional legal relationships. Supreme Court case-law has consolidated that trade secrets cover any reserved information with economic value whose disclosure can generate competitive advantage to the recipient or harm to the holder, provided the company has adopted reasonable measures to preserve confidentiality.

The Spanish Criminal Code typifies three differentiated modalities within this crime family. Art. 278 CP punishes industrial espionage, that is, the conduct of whoever, without authorisation, discovers a trade secret by seizing by any means data, electronic documents, computer media or other objects referring to it, or employing any of the means or instruments of Art. 197.1 CP (interception, eavesdropping, hidden cameras). Art. 279 CP regulates the disclosure of the secret by whoever had a legal or contractual obligation to keep reserve: typically managers, executives, technicians or employees with lawful access to strategic information who disseminate or use it for their own benefit or that of a third party after the employment relationship's termination. Art. 280 CP punishes the third-party recipient who, knowing the unlawful origin, uses the secret discovered or revealed by another, extending criminal liability to competitors who hire the "leaver" or exploit the stolen information.

The penalties are severe and reflect the strategic importance the legislator attributes to immaterial property. Espionage under Art. 278.1 CP is punished with two to four years' prison and fine of twelve to twenty-four months; if discovered secrets are disseminated, revealed or transferred, the penalty rises to three to five years' prison and fine of twelve to twenty-four months (Art. 278.2 CP). When means of Art. 197.1 CP are used, the penalty is imposed in its upper half. Disclosure under Art. 279 CP carries two to four years' prison and fine of twelve to twenty-four months; when the secret is used without disseminating it, the penalty is one to three years' prison and fine of six to twelve months. The third-party recipient under Art. 280 CP is sanctioned with one to three years' prison and fine of twelve to twenty-four months. To this are added ex delicto civil liabilities, which can reach millionaire figures for lost profits and emerging damage, and criminal liability of legal entities under Art. 288 CP, with fines, activity suspension, judicial intervention or, in extreme cases, dissolution.

Technical defence in these proceedings requires combining economic criminal law, industrial property, labour law and forensic computer expertise. The first axis is the denial of "secret" character per requirements of Art. 1 of Law 1/2019: information that is not generally known or easily accessible, that has commercial value due to its secret character and has been the object of reasonable measures to maintain confidentiality; the absence of any of these elements excludes typicality and displaces litigation to the civil sphere. The second axis is the distinction between legitimate know-how and reserved data: the Supreme Court has reiterated that the professional experience accumulated by a worker is not a trade secret, opening solid defences against accusations against former employees using their technical capacity in their new destination. The third axis is the forensic computer audit: review of access logs, USB devices, massive downloads and exit communications respecting digital chain of custody and case-law on electronic evidence. The fourth axis is the whistleblower protection: Law 2/2023 on informant protection shields the informant revealing secrets to report serious infractions, which can operate as a liability exclusion cause.

In current forensic practice we observe exponential growth in trade secret proceedings, particularly in the technology, pharmaceutical, strategic consulting and financial services sectors. Disloyal employee cases who copy the client portfolio before leaving for the competition constitute the most frequent modality, followed by leaks to investment funds and litigation derived from mergers and acquisitions. The Trade Secrets Law 1/2019 and Directive 2016/943/EU have raised protection standards and require companies to implement reasonable measures (NDAs, access controls, document marking, employee training) without which criminal protection may lapse. At Alonso Sala we combine 15+ years of experience in criminal defence with deep knowledge of corporate compliance, articulating strategies covering both the defence of the accused employee or executive and the representation of the victim company pursuing the theft of strategic information. Each trade secret case requires immediate intervention to preserve digital evidence, secure the chain of custody and articulate coordinated civil and criminal claims that protect the client's interests.