Disclosure of trade secrets
Criminal lawyers in Barcelona specialising in offences of discovery and disclosure of trade secrets and industrial espionage
Among the offences of discovery and disclosure of secrets, those committed in the business sphere are particularly important. They are regulated in articles 278, 279 and 280 of the Spanish Criminal Code.
These offences aim to protect companies’ confidential information, which is often a key element of their business and competitiveness. It is mainly strategic information —such as commercial data, production processes or technical know-how— that is not publicly available and has its own economic value. Criminal law therefore punishes both obtaining it unlawfully and subsequently using or disclosing it without the owner’s consent.
Unlike the offence of discovery and disclosure of secrets under article 197, which protects individuals’ privacy, these offences protect the company’s information and its position in the market.
What counts as a trade secret according to the Spanish Supreme Court
Recent Supreme Court case law has helped define what kind of information is protected by these offences. Judgment STS 735/2024 of 12 July states that trade secrets include all confidential information with competitive value for the company, such as financial data, turnover, customer lists or balance sheets, as well as other elements such as figures, lists, accounting entries, organisation charts, plans or internal memos.
Taking a functional and practical approach, the Supreme Court considers a trade secret to be any information relating to the company’s business which, if known against the company’s will, may affect its competitive capacity. Such information is characterised by its confidentiality, exclusivity, economic value and lawfulness, and its protection is based on the duty of loyalty of those who have access to it because of their relationship with the company. Trade secrets may cover technical or industrial matters as well as commercial and organisational ones, and may take any form, whether documentary, electronic or even verbal.
In short, the legal interest protected is the company’s competitive capacity, and the law punishes seizing or improperly accessing this content in order to discover it, as well as disclosing the information obtained to third parties.
Unlawfully obtaining trade secrets: industrial espionage (art. 278)
The law punishes obtaining trade secrets without consent —commonly known as industrial espionage—, such as simply seizing documents, data or storage media containing strategic or confidential information.
The penalty is two to four years in prison and a fine of twelve to twenty-four months. Because this conduct can cause serious economic harm to the company concerned, the sentence is heavier when the information obtained is disseminated, disclosed or transferred to third parties, and can reach five years in prison.
Disclosure by employees, executives or collaborators (art. 279)
The law also specifically punishes the disclosure, transfer or use of this information by someone who accessed it legitimately but has a legal or contractual duty of confidentiality. This is the case, for example, of employees, executives or collaborators who breach their duty of confidentiality.
The penalty is two to four years in prison and a fine of twelve to twenty-four months.
Dissemination or use by third parties (art. 280)
The Criminal Code also punishes anyone who, knowing its unlawful origin and without having taken part in obtaining it, disseminates or uses the trade secret.
The penalty is one to three years in prison and a fine of twelve to twenty-four months.
Corporate criminal liability and civil remedies
When these offences are committed within a company, the legal entity itself may also be held criminally liable (article 288 of the Criminal Code). This is why an appropriate criminal compliance programme is so important.
Outside criminal law, Spain’s Trade Secrets Act (Law 1/2019 of 20 February) also protects this information and allows its owner to bring civil actions, for example to stop the use of the secret or to claim compensation for the damage suffered.
How can we help you at SMK?
Trade secret proceedings require a detailed analysis of whether the information really qualified as a trade secret, how it was obtained, who had access to it and whether there was a duty of confidentiality. They often also involve employment, commercial and digital evidence issues.
At SMK Lawyers we act at every stage of the proceedings:
- Defence of employees, executives and collaborators under investigation or charged
- Criminal complaints for companies that have suffered a leak of confidential information
- Analysis of whether the information qualifies as a trade secret
- Prevention through criminal compliance protocols
SMK lawyers, specialists in trade secret offences
Sergi Mercé Klein has led SMK Lawyers for more than 25 years and is one of the most experienced criminal lawyers in complex proceedings, including economic crimes and disclosure of secrets.
We assist companies, executives and professionals, both in their defence and in bringing criminal proceedings, with a rigorous and strategic approach aimed at achieving the best possible outcome.
If your company has suffered a leak of confidential information or you are under investigation for these acts, tell us about your case in complete confidence.
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