POLAND Law and Practice Contributed by: Szymon Gogulski, Marek Oleksyn and Maciej Gil, Sołtysiński Kawecki & Szlęzak
1.13 Other Legal Theories Contractual Regime
• having illegally acquired information constituting a trade secret, discloses it to other persons or uses it in their own economic activity; or • discloses or uses information constituting a trade secret which they acquired while participating in a hearing or in other court proceedings concern - ing claims for an act of unfair competition related to the infringement of a right to a trade secret, or through access to the files of such proceedings if, in such proceedings, the hearing was closed to the public. Additionally, the Criminal Code (6 June 1997) provides for the criminal liability of anyone who, in violation of provisions of law or an obligation, accepts, discloses or uses information learned in connection with their function or work performed, or with a public, social, economic or scientific activity they pursue. Further, acquiring illegal access to information constitutes a criminal offence, notably: • acquiring information not intended for a perpetra - tor without authorisation by opening a sealed letter or connecting to a telecommunication network or by breaching/bypassing electronic, magnetic, IT or other special protection; • accessing an IT system (or any part of an IT sys - tem) without authorisation; • installing or using any bugging, visual or other equipment or software to acquire information that a perpetrator is not authorised to access; or • disclosing information acquired in the manner described above to a third party. Possible penalties include a fine (from PLN100 to PLN1.08 million), the restriction of liberty or the dep - rivation of liberty for up to two years. In some excep - tional cases (eg, recidivism), the penalties may be increased. A trade secret owner may pursue both civil and crimi - nal claims. 1.15 Extraterritoriality Jurisdiction – Brussels I bis Regulation One may bring a claim before a Polish court based on the misappropriation of trade secrets (infringement of trade secrets rights) that took place in another country
Regardless of the UCL’s provisions, the disclosure/ misappropriation of trade secrets may constitute a breach of a contract (eg, non-disclosure or licence agreements). In such a case, general rules on liability for non-performance or improper performance of a contract apply. Claims Against Non-Entrepreneurs As a rule, the UCL regime applies only to entrepre - neurs (defined as natural and legal persons and organisational units having no legal personality who, by undertaking profit-gaining or professional activity, even if secondary in nature, participate in economic activity). However, both case law and legal doctrine also accept the application of provisions of the UCL to trade secret protection relation to non-entrepreneurs. The Trade Secrets Directive and the TRIPS agreement additionally support such interpretation and approach. Claims regarding a non-entrepreneur’s misappropria - tion of trade secrets (in particular, employees and for - mer employees) may be also based on a different legal basis, in particular, on a contractual regime (if there is an appropriate confidentiality undertaking in place) or general tort regime (under the Civil Code). Additionally, each employee is required to keep confi - dential any information the disclosure of which could expose the employer to damage under the Labour Code’s provisions. Tortious Interference With a Contract Inducing an employee or any other person to breach a contractual confidentiality obligation with a third party constitutes a separate act of unfair competition, specifically defined in the UCL, and may result in an injunction or financial claims against the perpetrator. 1.14 Criminal Liability The UCL provides for criminal liability for the misap - propriation of trade secrets by any person, who: • in breach of their obligation towards an entrepre - neur, discloses information constituting a trade secret to another person, or uses such information in their own economic activity, and causes sub - stantial damage to an entrepreneur;
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