GIBRALTAR Law and Practice Contributed by: Emma Lejeune, Stuart Dalmedo, Adrian Pilcher, Nicholas Isola, Danielle Victor, James Castle, Louise Anne Turnock and Danielle Curtis, ISOLAS LLP
In accordance with Section 4 of the Protection of Trade Secrets Regulations 2018, it is possible the acquisi - tion of trade secrets in Gibraltar shall be considered lawful if obtained by any of the following means: • independent discovery or creation; • observation, study, disassembly or testing of a product or object that has been made available to the public or that is lawfully in the possession of the acquirer of the information who is free from any legally valid duty to limit the acquisition of the trade secret; • exercise of the right of workers or workers’ rep - resentatives to information and consultation in accordance with any rules of law applicable in Gibraltar; or • any other practice which, under the circumstances, is in conformity with honest commercial practices. In accordance with Section 8 of the Protection of Trade Secrets Regulations 2018, the limitation period for bringing a claim for the unlawful acquisition, use or disclosure of a trade secret is six years. The start date for reckoning the limitation period for a claim for the unlawful acquisition, use or disclosure of a trade secret against an infringer begins with the later of: • the day on which the unlawful acquisition, use or disclosure that is the subject of the claim ceases; or • the day of knowledge of the trade secret holder. Where damages are awarded in relation to unlaw - ful acquisition, Section 16 of the Protection of Trade Secrets Regulations 2018 states that all appropriate aspects shall be considered, including: • any negative economic consequences, includ - ing any lost profits, which the trade secret holder has suffered, and any unfair profits made by the infringer; • elements other than economic factors, including the moral prejudice caused to the trade secret holder by the unlawful acquisition, use or disclo - sure of the trade secret; and • where appropriate, damages may be awarded on the basis of the royalties or fees which would have
been due had the infringer obtained a licence to use the trade secret in question.
8. Data Protection 8.1 Applicable Regulations
In Gibraltar, the overarching national law on data pro - tection is the Data Protection Act 2004 (DPA 2004). The DPA 2004 was amended on 25 May 2018 to: • implement the General Data Protection Regulation (Regulation (EU) 2016/679) (EU GDPR); • transpose the Law Enforcement Directive (Directive (EU) 2016/680); • implement a data protection framework under the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data of 1981 (Convention 108); and • implement Articles 126–130 of the Convention of 19 June 1990 applying the Schengen Agreement of 14 June 1985. The changes made to the DPA 2004 took Brexit into account, as well as the Data Protection Act 2018 of England and Wales (DPA 2018). Both statutes share a similar structure, but with notable differences, such as the repeal of Part IV of the DPA 2004, which related to intelligence service processing and was similar in structure and content to Part 4 of the DPA 2018. Following the end of the Brexit transition period (see 1. Legal System), the DPA 2004 was further amended, and the EU GDPR now forms part of Gibraltar law by virtue of Section 6 of the European Union (Withdrawal) Act 2019, as read with (i) Section 2 (1B)(a) of the DPA, and (ii) the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regu - lations 2019. This is now referred to as the “Gibraltar GDPR”, which is essentially the EU GDPR read with certain modifications. It is, therefore, important to read the Gibraltar GDPR and the DPA 2004 side-by-side. The DPA 2004 and the Gibraltar GDPR are supple - mented by the following:
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