ITALY Law and Practice Contributed by: Giovanni F Casucci, Matteo Casucci, Serena Spadavecchia and Alice Viviana Niccoli, EY Tax & Law
secret protection. Instead, it provides a general clause addressing unfair competition, which applies to cases of misappropriation of both trade secrets and confidential business infor - mation, whenever such actions are carried out unfairly and in violation of business loyalty obli- gations. This provision grants, in particular, pro - tection to confidential information when its mis - appropriation is likely to damage the legitimate holder from a competitive standpoint, even if the data does not precisely meet the requirements for trade secret protection as defined by the CPI. Taken together, these legal frameworks ensure comprehensive protection for trade secrets, although they establish varying standards of proof. 1.5 Reasonable Measures Under Italian law, trade secrets must be subject to reasonable measures by their holder to main- tain their confidentiality, as this is one of the key criteria for legal protection. The reasonableness of the measures is assessed on a case-by-case basis, considering the nature of the information, its economic value, the industry standards and the context in which the information is handled. Courts typically evalu - ate whether the measures were sufficient to effectively limit access to the trade secret and whether they demonstrated a genuine intent to preserve its confidentiality. The types of measures already recommended by Article 32 of the GDPR can serve as a good starting point, particularly with the appropriate adoption of internal codes of conduct. For example, Italian courts have stated that lim - iting access to sensitive information, which is properly identified and marked, to employees or
contractors on a need-to-know basis and requir - ing them to sign NDAs or confidentiality clauses are considered reasonable measures. On the other hand, leaving sensitive information in easily accessible locations (such as unpro - tected folders on shared drives or unlocked offices), sharing trade secrets with a broad audi - ence without imposing confidentiality obligations or ensuring secure channels of communication, have been deemed unreasonable or insufficient measures. The concept of reasonable measures in pro - tecting trade secrets is inherently relative and depends on whether the measures reflect the importance of the information, the risks of dis - closure, and the norms and common practices within the specific industry. 1.6 Disclosure to Employees Generally speaking, in Italy the disclosure of a trade secret to employees or subcontractors does not jeopardise its protection, provided the security measures mentioned in 1.5 Reasonable Measures are duly observed and the disclosure is limited to specific employees in proportion to their specific role and tasks within the enterprise, subject to the above security measures. 1.7 Independent Discovery In accordance with Article 3 of the Trade Secrets Directive, independent discovery (paragraph a) or 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 under no legally valid obligation to limit the acquisition of the trade secret (paragraph b), are considered lawful.
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