The COVID-19 pandemic has impacted the need to better protect trade secrets. 

The World Intellectual Property Organization defines a trade secret as information that is commercially valuable because of its secretive nature. If it is known only to a limited group of persons and is subject to reasonable steps that have been taken by the rightful holder to keep the information secret it is a trade secret. 

In general, any information can be a trade secret if it has value for a company and is not publicly known. 

“Trade secret” as a legal term refers to an intellectual property right which requires no procedural formality for protection. Trade secrets can be protected for an unlimited amount of time, so long as they remain a secret. 

However, they can also be licensed or sold as any other intellectual property right can, even though they are not part of a formal register like patents or trademarks. 

Trade secrets are assets for any company and disclosure can be very harmful to any business. Therefore, there is a need for protection against disclosure.

The risk of disclosure can be due to both internal and external factors. 

External factors are the mostly unlawful actions of third parties, such as those seen in cases of cyber-attack or corporate espionage. 

Internal factors are those internal to the holder of the information. This can also be described in terms of negligence with regard to the security of the information. 

The use of online meeting tools during the COVID-19 pandemic in particular has increased significantly and, with it, the danger of unintentional data sharing has increased as well. From client meetings to digital court hearings to webinars, the need for internal precautions to avoid accidental or negligent trade secret disclosure is paramount. 

While there are international legal frameworks that address trade secrets and trade secret protection, they are not terribly robust.  

National laws provide remedies in case of unlawful disclosure and breach of confidentiality. However, the standards for trade secret protection vary from country to county, and jurisdictional questions are sometimes unclear. Further, trade secret protection provisions under domestic legal schemes tend to be reactive and not proactive. 

Thus, it is difficult to rely upon the protection of existing regulations. 

Companies are best protected, therefore, by internal measures of prevention and precaution. 

Preventative measures are those ensuring the security of your systems, data security, email, communications, firewalls, and others protecting against the external factors described above. 

Administrative measures are equally important. These including providing employee access to trade secrets only as needed and training employees as to the risk of digital sharing. 

Precautionary measures amount to establishing individual legal frameworks, such as contractual clauses or the use of non-disclosure agreements before any negotiations, cooperation, or business in general.

The use of NDAs in particular is beneficial as such agreements will allow you to define the terms of trade secrets in your own way, perhaps more widely than does the applicable law. 

An NDA will allow you to include contractual penalties, establish internal guidelines, specify who needs to know what level of information, and to clarify these things from the outset so that you do not later need to engage in prolonged investigation to determine whether a release of information was permissible or not. 

Likewise, the administrative measures described above are also good precautionary steps easily available to any organization. 

These are sometimes difficult for younger companies with flat hierarchies where a mentality of sharing is profuse. 

However, the earlier these practices are implemented, the better the company will be at a later date, when it has expanded and scaled its operation.