Customer data and trade secrets
The job bank then edits the resumes according to its customer database requirements, publishes them, and subsequently provides access to its authorised members, usually recruiters or human resource managers. If these recruiters want to browse and review the customer database owned by the online job bank, they are required to pay user fees and a contract with the job bank will be necessary.
As a protective measure, the job bank will prohibit recruiters from providing its member accounts and passwords, and from disclosing customer data, to any unauthorised third party. Recruiters that violate the contract terms are liable for breach of contract. Let’s take a look at the liability of any unauthorised third party that obtains customer data from existing job bank members—in this case, recruiters.
In a judgment of the Taiwan Intellectual Property Court released in December 2014, the court opined that the customer data of a job bank should be deemed a trade secret. If customer data is misappropriated by a third party, it has infringed the trade secrets of the job bank and is criminally liable.
The facts in this judgment are summarised as follows. Recruitment firm A and job bank D signed a contract under which A agreed not to provide its member account and password to any third party. However, A provided its member account and password to the employees of company B and company C to publish recruitment messages on the job bank’s website. Since the available positions published by B and C did not seem to be the manpower A would need, job bank D investigated this matter and found that the contact information in the said recruitment messages belonged to the employees of B and C. Obviously B and C had accessed D’s customer data by means of A’s member account. Therefore D filed a lawsuit claiming trade secret misappropriation and infringement against A, B and C.
To constitute trade secret infringement, the appropriated information must be a trade secret and the information must be illegitimately acquired, disclosed or used. In this judgment, the court held that neither the existence of a legal relationship between the parties nor actual damages being incurred is a necessary factor for trade secret infringement. According to a judgment by the Supreme Court in 2008, the burden of proof upon the plaintiff can be lowered to balance the burden of proof borne by both parties, since it is not easy to acquire evidence of trade secret misappropriation.
