Trade secrets: what are they and how can they be protected?

Trade secrets are often the silent engine behind a competitive advantage. Examples include source code, pricing arrangements, customer strategies, commercial plans or unique data analyses. From a legal perspective, trade secrets concern information that (i) is not generally known or readily accessible, (ii) has commercial value because it is secret, and (iii) is subject to reasonable steps by the lawful holder to keep it confidential. This final requirement is crucial: without demonstrable security measures, contractual safeguards and internal procedures, information will quickly be regarded as merely “confidential”, but not necessarily as a legally protected trade secret.

Protection of Trade secrets

The core of trade secret protection lies in the Dutch Trade Secrets Act (Wet bescherming bedrijfsgeheimen – Wbb), which is based on EU Directive 2016/943. The Wbb provides legal remedies against the unlawful acquisition, use or disclosure of trade secrets. Available measures include, among others, injunctions prohibiting use or disclosure, evidentiary seizures, surrender of data carriers and claims for damages.

In addition, general civil law plays an important role:

• Tort law (Article 6:162 Dutch Civil Code): applicable where trade secrets are misused without a contractual basis.
• Contract law: confidentiality clauses, non-disclosure agreements (NDAs), non-compete and non-solicitation clauses.
• Procedural law: protection of confidential information in legal proceedings, and since 1 January 2025 a revised right of access to evidence under Dutch evidentiary law.
• Employment law: principles of good employment and good employer conduct, contractual arrangements in employment agreements, and measures upon termination of employment.

Finally, there may be tension with other legal regimes, such as the GDPR. An organisation processing personal data may be required to provide information on data subjects, while simultaneously seeking to protect confidential business information. Case law shows that confidentiality is not automatic in such situations: it must be substantiated in a concrete and specific manner.

Case law

In a decision of the District Court of Midden-Nederland, an individual submitted an access request to Graydon/Creditsafe (“Graydon”), seeking, among other things, information about the parties to whom his personal data had been disclosed. Graydon refused, arguing that this information constituted confidential business information and that its customer list was protected as a trade secret. The court held that Graydon had failed to sufficiently substantiate why the customer list should qualify as a trade secret and therefore ordered Graydon to provide the information.

In a decision of the District Court of Noord-Nederland, the claimant-initiated summary proceedings against Party X, seeking access to information relating to the sale of shares and assets of a holding company. Based on a value-uplift clause, the claimant potentially had a right to a portion of the proceeds. Party X refused disclosure, arguing that the information concerned commercially sensitive transaction data that had to remain confidential, partly due to confidentiality arrangements with the purchaser. The court held that Party X had not demonstrated why the alleged commercial sensitivity, in itself, justified refusal to provide the information. Consequently, Party X was ordered to disclose the information, subject to strict confidentiality obligations and a substantial contractual penalty in the event of breach.

Conclusion

Trade secrets benefit from strong legal protection, but only where organisations take confidentiality seriously implement concrete protective measures and are able to demonstrate them. At the same time, case law shows that the concept of “trade secret” does not function as a standard defence against statutory access or disclosure obligations. Organisations wishing to operate carefully should therefore invest not only in legal labels, but in practical safeguards and a strategy for controlled disclosure of confidential information when required by law or court order.

Questions about trade secrets? Please contact one of our specialists.

Hereby the Turkish version.