Three key points for a good understanding of the privacy clause
14/06/2019 by Hicham HMICHE
14/06/2019 by Hicham HMICHE
The privacy clause aims to guarantee the conservation of specific information within a work structure . In concrete terms, it is therefore a legal tool. It is used by a company which wants to fight against the spread of historical expertise and sensitive know-how to the competition. This clause is particularly relevant in the context of strategic and confidential projects, which benefit from as much to a company as to its customers. Generally, the source of a knowledge leak is a current employee or a former employee. Such a clause must be included in the contract between the parties. both parties (employer and employee) at the time of its signature. Nevertheless, it is quite possible to add it later. It can therefore very well complement an already existing employment contract. In In some cases, the privacy clause continues to have effect even if the contractual relationship no longer exists. This legal statement concerns both the leakage of knowledge to the outside (i.e. to other companies) and the leakage of knowledge to the public. internally, in the event that a project does not yet have to be disclosed to everyone.
No. This clause is not to be equated with the non-competition clause. They are two quite distinct legal clauses. In terms of the differences, a non-competition clause has a time limit and space provided for the signature. In other words, it does not apply always and everywhere. You just have to wait until it expires or move to another geographical or sectoral area to circumvent it. Similarly, if a The obligation of discretion is also required in a non-competition clause, it is not as demanding as in the privacy clause. Only very specific information is concerned. As a rule, the non-competition clause automatically ends when the employee's employment contract no longer applies.
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In order to be recognised, the privacy clause must not simply bind two parties by their signature. Factors internal or external to the company must justify its existence. At particular, the need to protect the interests of society must be real. The position held by the employee and the activity of the company are also taken into account in determining the validity of such a clause. All professional context does not necessarily lend itself to it. In terms of content, the clause must list all so-called sensitive data or information. In a word, those that need to be protected, either because they are new or on the contrary historical. In any case, the strategic and importance level of such knowledge is critical. Depending on the context, it may relate to budgetary characteristics as well as well-kept production secrets. Other possibilities include the confidentiality of certain negotiations, research and development, specific know-how or strategic decisions that will take effect in the future.
What recourse is there if, despite signing a privacy clause, an employee still decides to disclose the protected information or data to a third party? If the clause complies with the conditions set out more high, the employee will be recognised as responsible by law. This means that he can be dismissed at the discretion of the management. In this case, the terms of the dismissal are for heavy or serious faults that apply. If the consequences are particularly detrimental to the company, it may consider prosecution. The competent court is then the industrial tribunal. The employee brought to court may be forced to financially compensate the company for the damage it has caused. What if the offender is a former employee? The same proceedings may concern a former employee. On the other hand, in In this case, there is no specific provision in labour law. The judge therefore has the role of ruling according to the level of fault committed. Case law will dictate the applicable law.
As we have just seen, the privacy clause can be invoked to compensate for financial damage. But it can also to be used if the reputation of the company is threatened by a current or former employee. Indeed, as the professional world is more and more impacted by the internet, the information finds its way to new channels to circulate. Knowing how to manage this information is an imperative when it comes to ensuring a company's good reputation. The stakes are strategic. For the company, it also means that it must regularly and carefully monitor what happens online and risks damaging its reputation. In this digital environment, the speed at which confidential data is spread has never been so high!
So what happens if strategic information has been disclosed that damages a company's reputation? Does a current or former employee have the right to publish messages that are unfair or penalise the company's reputation? his employer's reputation? Of course, the answer is no. Here again, the company has recourse through the privacy clause. And this, even if any other existing legal instrument cannot be used. used. Freedom of expression is guaranteed in France, but only as long as it does not seriously harm a third party.