Trade secrets and criminal liability for their disclosure under Polish law

Trade secrets in Polish law include information of economic value, both technical and commercial, whose unauthorised disclosure could cause damage to the interests of the entrepreneur. The modern economy is largely based on intangible assets such as technology, know-how and industry information, which entrepreneurs collect in order to increase their competitive advantage. The protection of confidential information in a company may take the form of industrial property rights (patents, utility models, integrated circuit topographies), copyright (works, databases) and, in the case of information that cannot be protected in any other way, by keeping it secret.

In this publication, we attempt to answer the following questions:

1) what is a trade secret under Polish law?

2) when can a breach of a trade secret result in criminal liability in Poland?

3) what practical steps can an entrepreneur whose trade secret has been breached take?

What constitutes a trade secret under Polish law?

Pursuant to Article 11(2) of the Polish Act of 16 April 1993 on Combating Unfair Competition (hereinafter: ‘CUC’), a trade secret is any information of a technical, technological or organisational nature, as well as other information:

1. having economic value,
2. which, as a whole or in a particular combination and collection of their elements, are not generally known to persons normally dealing with the type of information in question or are not readily accessible to such persons, and
3. in respect of which the person entitled to use or dispose of the information has taken, with due care, measures to keep it confidential.

Consequently, not all information held by an entrepreneur can constitute a trade secret. In order for information to be considered a trade secret, it must meet all of the above conditions.

However, entrepreneurs should bear in mind that the definition of a trade secret in the Polish Act is quite general and fluid, which is why in each case, based on the evidence, it is the court that decides whether the information in question actually qualifies as a trade secret or not.

A practical example from Polish case law:

“The concept of business secrecy [in Poland] basically overlaps with trade secrets, although business secrecy may be understood more broadly in some situations. It is also assumed that confidentiality will only apply if the business controls the number and nature of persons having access to specific information. Confidential information is therefore information that the entrepreneur considers confidential and wishes to remain secret from a certain group of recipients, i.e. competitors. This intention must be recognisable to other persons. The legislator has not specified what actions this should entail. It therefore seems that any activity that indicates that certain information is treated as confidential will constitute implementation of the statutory recommendation in question. For this reason, the statutory requirement to take the necessary measures will also be met by taking certain implied actions, such as allowing only a small group of employees access to the information. In specific circumstances, the obligation to maintain confidentiality may be determined by the nature of the information itself in conjunction with the level of professional knowledge of the persons who have come into possession of it. To put it simply, information becomes confidential when an entrepreneur expresses a desire to keep it unknown to third parties”. (judgment of the Polish Supreme Administrative Court of 15 January 2025, ref. no. III OSK 2375/24)

Information has economic value

The first prerequisite for recognising information as a trade secret in Poland is that it has specific economic value. This should be understood as the possibility of using the information in business activities in a way that brings or may bring economic benefits to the entrepreneur. In other words, information has economic value if its disclosure to third parties could cause a loss to the entrepreneur or enable competitors to gain a market advantage. Furthermore, case law indicates that the economic value of information does not have to be significant and that it can be both actual and potential (see: judgment of the Polish Supreme Administrative Court of 17 August 2017, ref. no. II GSK 3485/15).

Of course, there is no top-down list of what specifically has economic value, but in practice, a number of examples can be identified:

• any financial data, such as forecasts, analyses,
• information on the production technology of a given product,
• marketing plans, sales strategies,
• lists of key customers, suppliers, contractors, competitors,
• company know-how giving a competitive advantage.
• organisational information, such as company structure, internal procedures, quality control systems,
• technical specifications of products, recipes, diagrams, prototype designs;
• data on production costs, margins, pricing policy;
• negotiation strategies, contract terms, contract templates used;
• information on planned investments, new projects, expansion into new markets;
• unpublished research and development (R&D) results, test reports, project documentation;
• customer databases, their purchasing preferences, risk profiles,
• etc.

The information is not generally known or readily available

Secondly, according to Polish law the information must not be generally known or readily available to persons normally dealing with that type of information, and its acquisition requires actions beyond the standard activities used in the industry.

In practice, this means that a trade secret which is known within the industry or which can be accessed without undue effort by persons familiar with the subject matter does not constitute a trade secret. In other words, widespread knowledge of a given piece of information, or at least easy access to it by persons who deal with this type of data professionally or as specialists, excludes the possibility of classifying it as a trade secret.

However, a trade secret will be a set of information which, although individually known to specialists in a given field, when compiled in a single, organised collection, creates a new, separate economic value. In such a situation, it is considered that it is not each piece of information that is protected, but rather the effect of compiling the information, which requires the effort, knowledge or experience of the entrepreneur. As a result, it may be considered a trade secret.

Measures to maintain the confidentiality of information

The third prerequisite is that the holder of the trade secret in Poland takes measures to maintain the confidentiality of that information. In practice, this means implementing appropriate procedures and technical safeguards that clearly indicate that the information is confidential and subject to protection. Examples of such measures include:

• entering into non-disclosure agreements (NDAs) with employees, associates, contractors and other persons who may have access to the information;
• implementing internal policies and regulations concerning the processing of classified information and information security rules;
• introducing access restrictions, both physical (e.g. lockable rooms, document cabinets) and digital (passwords, user roles, two-factor authentication);
• marking documents with confidentiality clauses (e.g. ‘confidential’, ‘for internal use only’);
• monitoring and controlling access to documents and IT systems;
• training employees in the proper handling of confidential information;
• procedures for granting and revoking authorisations and documenting the flow of information;
• technical data security measures — encryption, firewalls, intrusion detection systems, backups;
• restricting the ability to copy or remove documents from the company’s premises.

However, it is important that the measures described above are implemented at the moment when confidential information arises, and not post factum, i.e. when the data has already been disclosed to third parties. In such a situation, it cannot be considered that the entrepreneur has taken appropriate measures to maintain the confidentiality of the information.

A practical example from Polish case law:

“Measures to keep certain information confidential should be taken at the stage of its generation, and not at any time after the information has been produced and could have reached an indefinite group of recipients. It would be unreasonable for an entrepreneur to classify as confidential information that has been in existence for some time, during which an unlimited number of people could have become familiar with its content. Such action would be completely pointless. This is also supported by the phrase used by the legislator at the end of the provision ‘in respect of which the entrepreneur has taken the necessary measures to preserve their confidentiality.’ (judgment of the Polish Provincial Administrative Court in Szczecin of 11 January 2018, ref. no. II SA/SZ 1271/17)

Breach of trade secrets in Polish law

In practice, however, there are often situations in which trade secrets are violated in Poland, whether as a result of deliberate action (e.g. data theft, transfer of data to competitors, use of information after termination of cooperation) or unintentionally, due to a lack of due diligence on the part of a company employee or contractor. Such situations may result in economic damage to the entrepreneur whose trade secrets have been disclosed and may entail civil liability and, in some cases, criminal liability. Breaches of trade secrets may include, among others:

• disclosure or use of confidential information without authorisation,
• transfer of data to competitors or third parties,
• use of information to achieve economic benefit at the expense of the entrepreneur,
• unintentional actions resulting from a lack of appropriate information protection procedures or failure to exercise due diligence.

In such situations, the Polish Act on Combating Unfair Competition provides for three types of offences relating to the violation of trade secrets:

• an offence committed by a person who has legally obtained information and then, contrary to their obligation to the entrepreneur, has violated trade secrets, causing serious damage to the entrepreneur (Article 23(1) of the Act),

• an offence committed by a person who illegally obtained information and then violated trade secrets (Article 23(2) of the Act),

• an offence committed by a person who has become acquainted with the information by participating in a hearing or other court proceedings or by accessing the files of such proceedings (Article 23(3) of the Act).

Breach of trade secrets obtained legally in Poland

According to the cited provision, an offence is committed by a person who, contrary to their obligation towards an entrepreneur, discloses to another person or uses in their own business activity information constituting a trade secret, if this causes serious damage to the entrepreneur.

Criminal liability for breach of trade secrets in Poland extends to persons who have obtained access to confidential information legally and then disclosed or used it for their own purposes. In practice, these will most often be employees or former employees, but they may also be persons who have entered into a non-disclosure agreement (NDA), members of the management board or supervisory board – generally speaking, all those who have obtained access to confidential information in a lawful manner.

However, according to the provision, the condition for attributing the offence of breach of trade secrets is ‘the occurrence of serious damage’. If the breach of trade secrets does not cause serious damage, the act will not be classified as a criminal offence. Therefore, mere ‘interference’ with a trade secret is not sufficient to hold the perpetrator criminally liable; rather, the actual occurrence of serious damage to the company is of key importance. In the absence of serious damage, the entrepreneur may seek protection only under civil law regulations and not under criminal law.

In practice, this means that when reporting a suspected offence, the reporting party should always take into account and demonstrate the occurrence of serious damage in connection with the breach of trade secrets. If they fail to do so, the law enforcement authority may refuse to initiate criminal proceedings, invoking the principle of ‘ultima ratio of criminal law’, i.e. the principle that in Poland criminal law should only be applied when other methods (e.g. civil law) have proved ineffective or insufficient to solve a social problem.

However, if no serious damage has occurred, the entity affected by the infringement may still invoke Article 266 § 1 of the Polish Criminal Code. This provision protects the confidentiality of information, even if it does not constitute a trade secret and no serious damage has been caused. The provision may be applied to persons who, contrary to their obligation of confidentiality, disclose or use information covered by professional secrecy or other obligations, for example, in accordance with Article 100 § 2(4) of the Polish Labour Code, according to which an employee is obliged, in particular, to care for the good of the workplace, protect its property and keep confidential any information whose disclosure could expose the employer to damage.

A practical example from Polish case law:

“In order to attribute to the perpetrator the characteristics of an act under Article 23(1) of the Act of 16 April 1993 on combating unfair competition, it is necessary not only to disclose and use information constituting a trade secret in the course of one’s business activities, but also for serious damage to occur. The absence of serious damage results in protection guaranteed by civil law regulations.” (judgment of the Polish Regional Court in Wrocław, 4th Criminal Appeals Division, of 14 December 2017, ref. no. IV Ka 1135/17)

“Criminal law is the ultima ratio in the legal system, which means that criminal law should only intervene in a given area of life when other areas of law are insufficient to resolve legal relations between the parties” (judgment of the Polish Court of Appeal in Katowice, 2nd Criminal Division, of 21 September 2017, ref. no. II AKa 311/17).

Violation of trade secrets obtained illegally in Poland

The second type of breach of trade secrets is when information constituting a trade secret is obtained illegally. Pursuant to Article 23(2) of the Polish Act, criminal liability is incurred by a person who, having obtained such information unlawfully, discloses it to others or uses it in their own business activities.

In our experience, this type of offence most often occurs in situations where an employer unlawfully obtains another person’s trade secret from a new employee. In many cases, however, it is difficult in practice to distinguish between legal competition and the unlawful use of another person’s business information.

Of course, there are many more ways to illegally obtain and use trade secrets. Examples include:

• gaining access to documents, electronic files or materials belonging to an entrepreneur without their consent,
• copying, misappropriating or transferring data that constitutes a trade secret,
• using information in competitive activities,
• disclosing data to unauthorised third parties, including contractors or business partners.

The acquisition of information constituting a trade secret is unlawful in particular when it occurs without the consent of the person authorised to use or dispose of the information and results from unauthorised access, misappropriation, copying of documents, objects, materials, substances or electronic files containing such information or allowing its content to be reproduced (Article 11(3) of the Polish Act).

Breach of trade secrets obtained in court proceedings in Poland

The third type of trade secret infringement is the disclosure or use of information to which a person has gained access in the course of court proceedings in Poland. The purpose of this provision is to protect trade secrets that are disclosed in the course of court proceedings. This is a relatively new offence, which is why case law in this area is still limited.

• Criminal sanctions for breach of trade secrets

All three types of offences described in Article 23 of the Polish Act are subject to the same criminal penalties: a fine, restriction of liberty or imprisonment for up to two years.

• Fine

In accordance with the rules set out in the Polish Criminal Code, the fine is determined in daily rates:

• number of rates: from 100 to 540,
• amount of one rate: from PLN 10 to PLN 2,000.

This means that the fine may range from PLN 1,000 to PLN 1,080,000. When determining the daily rate, the court takes into account a number of circumstances related to the offender’s situation, such as:  income, personal and financial situation, and earning capacity. If, in the course of the proceedings, the court determines that the offence was committed for financial gain due to the disclosure of a trade secret or that the offender obtained such gain, a fine may be imposed in addition to the custodial sentence.

• Restriction of liberty

The restriction of liberty lasts from 3 months to 2 years. It consists of:

• performing unpaid community service for 20-40 hours per month, or
• deducting 10% to 25% of the monthly salary for a social purpose indicated by the court.

• Imprisonment

Imprisonment lasts from 1 month to 2 years. In the case of a sentence of up to one year, the court may suspend its execution.

• Additional criminal law measures

In addition to the penalties described above, the court may also impose:

• appropriate penal measures specified in Chapter V of the Polish Criminal Code,
• forfeiture of property or compensatory measures under the conditions specified in Chapter Va of the Polish Criminal Code.

• Obligation to repair damage in criminal proceedings

Furthermore, in the course of criminal proceedings against a person who has violated a trade secret, the injured party (i.e. the entity whose secret has been violated) may request that the court order the repair of the damage caused by the offence. In practice, this means that the perpetrator may be obliged to compensate for losses resulting from the breach of trade secrets or other offences related to the disclosure of confidential information.

If it is difficult to determine the amount of damage or to remedy it in the traditional manner, the court may instead impose an obligation on the perpetrator to pay compensation, which may not exceed PLN 200,000, to the injured party. The penalty payment constitutes compensation for non-pecuniary damage or difficulties related to the repair of pecuniary damage and is intended to compensate for losses in situations where classic compensation is difficult to determine.

Furthermore, a court ruling on the obligation to compensate for damage in criminal proceedings does not preclude the pursuit of the remaining, unsatisfied part of the claim in civil proceedings. This means that if the amount of compensation awarded in criminal proceedings does not cover the full value of the damage suffered, the victim may still bring a claim for compensation in a Polish civil law court.

In practice, this means that criminal proceedings can simultaneously serve as a punitive measure against the perpetrator and partially compensate the victim for their losses, although full satisfaction of the claim may require the initiation of parallel civil proceedings.

Conditional discontinuation of criminal proceedings

Pursuant to Articles 66-67 of the Polish Criminal Code, it is possible to conditionally discontinue criminal proceedings in the event of a breach of trade secrets. More details on the institution of conditional discontinuation of criminal proceedings can be found in this publication.

Summary

Trade secrets are a key element in the protection of an entrepreneur’s intangible assets, covering information of economic value that is not widely known and is subject to special measures to maintain its confidentiality vis-à-vis third parties. As a rule, a breach of trade secrets leads to serious economic damage to the entrepreneur’s assets and may therefore entail both civil and criminal liability.

The provisions of the Polish Act on Combating Unfair Competition and the Polish Criminal Code provide for various types of violations, ranging from the disclosure of legally obtained information, through the illegal acquisition of information, to the use of confidential data in court proceedings. Depending on the facts of the case, the perpetrator may face consequences in the form of a fine, restriction of liberty or imprisonment for up to two years, as well as an obligation to repair the damage caused to the entrepreneur by their actions.

It also seems crucial for entrepreneurs to introduce effective information protection procedures, such as NDAs, restrictions on access to information, data encryption and employee training. Appropriate preventive measures not only increase information security, but also strengthen the basis for pursuing claims in the event of a breach of trade secrets.

Knowledge of regulations and judicial practices in the field of trade secret protection allows entrepreneurs not only to minimise the risk of infringements, but also to respond effectively in situations of threat, protecting their economic interests and reputation on the market.