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 OCTOBER 2010 TRADE SECRETS AND EMPLOYEES A trade secret may be described as the intellectual property of a person engaged in business and which is relevant to that business, which is known to a select group of persons only and which is of value to its owner. Like any other property the unlawful use of one's trade secrets by another is protected in terms of our common law. In the course of business it is inevitable that some trade secrets would become known to employees, be it as specialised knowledge or acquired skills. May an employee reveal my trade secrets to another whilst in my employ? The answer hereto is relatively simple: No. However, if that employee leaves my employ, may he utilise his knowledge or skills acquired from me to earn a living elsewhere? The answer to this question is considerably more difficult and less clear cut as it brings the interests of employer and (ex) employee into direct opposition. On the one hand is a right to the exclusive use of my own intellectual property by myself. On the other is my ex employee's right to earn a decent living off the skills he has acquired during his working life. To deny him that opportunity would sterilise his ability to earn a living. There is no clear-cut answer to this question. Our courts would weigh up the competing interests of employer and ex-employee and the value of each in arriving at a conclusion. This sounds like a rather woolly and imprecise answer, and it is. However, the type of reasoning involved is very common in our law. The court would ask itself, in balancing the competing interests of the parties, what the prevailing legal convictions of the specific community involved would be, and based upon that answer, give judgment. From this it must be clear that the answer to this question would not remain constant, given that the make-up and convictions of societies change with the passage of time. And a good thing too, as such a yardstick allows our judges to adapt their judgments to changing times and societal opinions. When consulting your attorney on such an issue, cut him some slack, the answer you seek is often anything but cut and dried. By: Dr Daan Steenkamp Property and Commercial Department T: (033) 341 9100 |
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