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.
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.
Conduct punished: obtaining, disclosing and using trade secrets
These offences cover different types of conduct relating to the unlawful obtaining and dissemination of business information.
On the one hand, 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.
On the other hand, it specifically punishes the disclosure, transfer or use of that information, whether it was obtained unlawfully or accessed legitimately; for example, in the case of employees, executives or collaborators who breach their duty of confidentiality.
This conduct can cause serious economic harm to the company concerned, which is why the Criminal Code imposes a heavier sentence when the information obtained is disseminated, disclosed or transferred to third parties.
Penalties for disclosure of trade secrets
The Criminal Code sets out the following penalties:
- Unlawfully obtaining trade secrets (article 278): two to four years in prison and a fine of twelve to twenty-four months. If the secrets are also disseminated, disclosed or transferred to third parties, the sentence can reach five years in prison.
- Disclosure by a person with a legal or contractual duty of confidentiality (article 279): two to four years in prison and a fine of twelve to twenty-four months.
- Dissemination or use by a third party who, knowing its unlawful origin and without having taken part in obtaining it, disseminates or uses the trade secret (article 280): one to three years in prison and a fine of twelve to twenty-four months.
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.
Criminal defence in trade secret cases
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 assist companies, executives and professionals in proceedings for economic crimes and disclosure of secrets. If your company has suffered a leak of confidential information or you are under investigation for these acts, contact our firm and we will review your case in complete confidence.
