The Requirement for Expert Examination to Determine if Disclosed Information Constitutes a Trade Secret in the Context of the Offence of Disclosure of Trade Secrets

Attorney Dr. Tolga Ersoy | Criminal Law | March 28, 2018

The penalties for the act of disclosing trade secrets are regulated by Article 239 of the Turkish Criminal Code. The article is titled "Disclosure of Information or Documents Constituting Trade Secrets, Banking Secrets, or Customer Secrets." Pursuant to the provisions of this article, any person who, by virtue of their title, duty, profession, or art, becomes aware of information or documents constituting a trade secret, banking secret, or customer secret, and then provides or discloses such information or documents to unauthorized persons, shall, upon complaint, be sentenced to imprisonment for a term of one to three years and a judicial fine of up to five thousand days. Similarly, if information or documents constituting a trade secret, banking secret, or customer secret are obtained unlawfully and then provided or disclosed to unauthorized persons by those who obtained them, such persons shall also be sentenced to imprisonment for a term of one to three years and a judicial fine of up to five thousand days.

In this context, how shall a trade secret be defined? What constitutes a trade secret, and what does not?

The legislative rationale of the Law states that the determination of whether information or a document constitutes a trade secret shall be made by the judge, taking into account the relevant criteria.

In this scope, it is imperative to consider the approach of the Court of Cassation. In its decision dated October 12, 2015, numbered 2014/7809 E. and 2017/118 K., the 5th Criminal Chamber of the Court of Cassation stated that an expert report should be obtained from specialists regarding whether the information contained in the copied records constitutes a trade secret or a customer secret, and subsequently, the legal status of the defendant should be determined and assessed based on the outcome.

In the material facts subject to the judgment; on the date of the offence, the defendant, who was working as an engineer within the complainant company, disabled the company's main computer security system, accessed it remotely, and transferred data to his own computer, and copied 2490 files, encrypted them in ZIP format, to an external memory device, and then transferred them to the main computer of the company where he had newly started employment. However, the defendant and his counsel asserted in their defense that they did not accept the charges, stating that the allegedly copied data did not constitute a trade secret or customer secret. The complainant, on the other hand, declared that this data constituted a trade secret.

It is understood that, alongside the offence of disclosing information or documents constituting a trade secret, banking secret, or customer secret, the offence of obstructing a system, corrupting, destroying, or altering data was also committed.

The Local Court, in the public prosecution initiated for the offences of disclosing information or documents constituting a trade secret, banking secret, or customer secret, and obstructing a system, corrupting, destroying, or altering data, ruled that the act, as a whole, constituted the offence of disclosing information or documents constituting a trade secret, banking secret, or customer secret, as defined in Article 239 of the Turkish Criminal Code.

The 5th Civil Chamber of the Court of Cassation, considering that the records in the file pertain to matters requiring technical knowledge and expertise, ruled that an expert report should be obtained from specialists regarding whether the information contained in the copied records constitutes a trade secret or a customer secret, and that the legal status of the defendant should be determined and assessed based on the resulting outcome, thereby reversing the Local Court's decision.

Therefore, as stated in this precedent-setting judgment, the scope and evaluation of a trade secret pertain to matters requiring technical knowledge and expertise, and in the proceedings to be conducted due to the disclosure of such a secret, the necessity arises for an Expert Examination to determine whether the disclosed matter constitutes a trade secret.