Reasonable protection measures

Reasonable protective measures are the third condition for the protection of trade secrets, together with the information not being generally known and its commercial value. Under Article L. 151-1 of the Commercial Code, which can be consulted on Légifrance, the information must be subject, on the part of its lawful holder, to reasonable protective measures, having regard to the circumstances, to keep it secret. Reasonable protective measures are the condition most often debated in court, because it is the one companies neglect.

The content of reasonable protective measures

First, legal measures: confidentiality clauses in employment contracts, confidentiality agreements with partners, subcontracting and research agreements, IT charters, onboarding and offboarding procedures for employees. Next, organisational measures: identification and classification of information, restriction of access to those who need it, marking of documents, register of secrets, training of teams, control of visitors. Finally, technical measures: management of access rights, encryption, logging, segregation of systems, framing of sharing tools and generative artificial intelligence tools.

Assessing reasonableness

Reasonableness is assessed having regard to the circumstances: size of the company, value of the information, sector, risks identified. The law does not require perfect or exhaustive measures, but consistent and proportionate ones. Information accessible to all employees without restriction, sent to third parties without a confidentiality clause or stored without access control loses its protection, whatever its value. Conversely, a company that demonstrates a documented and applied policy enjoys protection even if a leak has occurred. The burden of proof lies with the holder of the secret, which requires building the file before any dispute.

Key points

In practice, reasonable protective measures are not decreed at the time of the dispute: they are built, documented and updated. A periodic audit makes it possible to check their consistency and to build the evidence file. The firm conducts these audits and argues this condition before the courts, as presented on the pages trade secrets lawyer and trade secret audit.