Protection of Trade Secrets: Brazil, China, India, Russian Federation, South Africa

Publisher Marketing: In Brazil, the violation of trade secrets is considered crime of unfair competition and is regulated by Law No. 9,279 of May 14, 1996. A constitutional principle protects the confidentiality of the source when necessary for the performance of a professional activity. For civil remedies, the Civil Code determines that a person who practices an illicit act and causes damage to another person is obligated to repair the damage caused. The Code of Civil Procedure allows for the search and seizure of a person or thing provided that the requester justifies the reasons for the measure, and Brazilian Labor Law grants employers the right to terminate an employee for violation of a trade secret. In China, the enforcement of trade secret protection may include criminal prosecution under the Criminal Law and administrative penalties under the Anti-Unfair Competition Law. The Anti-Unfair Competition Law also provides for compensatory damages as civil remedies to the trade secret owner, as do other civil and commercial laws such as the Contract Law and Labor Contract Law. A preliminary injunction for trade secret misappropriation used to be unusual, but this may be changing. There is no specific legislation that regulates trade secrets in India. The courts have protected trade secrets through common law actions for breach of confidence or breach of contract. In the absence a contract, Indian courts have also relied on the principle of equity to provide protection in some instances. Civil remedies include damages, injunctions, and the return of the confidential information. General civil law principles apply equally to the protection of trade (commercial) and production (know-how) secrets. Legal protection extends to information that was formally classified as secret and to cases when the owner of the secrets took the measures required to protect them. In cases where protected secrets are divulged, violators are subject to civil, criminal, administrative, and disciplinary measures. Civil remedies are usually limited to direct real damages incurred as the result of the trade secret infringement. Injunction relief can be requested by the owner of the information in order to prevent further damage. South Africa does not have specific legislation devoted to protecting trade secrets. However, South Africa's common law protects trade secrets from unauthorized conduct including their acquisition, use, and publication by competitors and current or former employees. South African courts protect information as a trade secret if it meets three requirements: it is capable of application in trade and industry, it is not within public knowledge, and it has an economic value. In cases of infringement of trade secrets, courts can prescribe a number of remedies under contract law and the law of tort (or delict).