Protecting trade secrets at home: the risks of remote working through COVID-19

COVID-19 has forced businesses around the world to adapt rapidly to new ways of working. For some, government-ordered lockdowns and social distancing policies have resulted in entire workforces being redeployed to work from home, while others have made the more difficult decision to furlough or terminate employees altogether in an effort to weather the storm.

Both scenarios raise a number of logistical and, invariably, human challenges. One that may not have been at the fore of consideration is the ongoing protection of trade secrets, a particularly sensitive concern during times of crisis.

Through disruption to normal procedures, heightened risks of disclosure present themselves, and ultimately many businesses will rely on the commercial value of the information to carry through to the other side once operations can return to a more normal state.

“Beyond taking preventive measures, there is a wide range of legal remedies available from the courts in instances of foul play.”

Unlike many other forms of intellectual property, the existence and perpetuity of a trade secret depends on its being kept a secret and, per EU Directive 2016/943, an owner in the UK/EU will need to show that it has taken reasonable steps to do so. Similar requirements can be found in a number of jurisdictions, for example in the US where a “reasonable efforts” obligation forms part of the statutory test. This onus subsists, even when it may be more difficult to ensure maximum secrecy and to determine whether such information is being accessed and made use of remotely.

Risks of working from home

Trade secrets that are accessible to employees are most commonly stored in the form of data. While there may be little difference in how an employee interacts with data in their workplace and their home (ie, access via the same devices), a number of risks might be exacerbated through remote working arrangements. These include: