Business Secrets: What Are They and How to Protect Them?

As part of a partnership with The Venture Builder, Raposo, Sá Miranda & Associados held a lecture on July 16th about a topic often undervalued — how to protect “business secrets.” This post summarizes the key points from that presentation.

Raposo, Sá Miranda & Associados, a law firm founded in 2001, is a multidisciplinary practice with over 200 professionals and a nationwide presence across mainland Portugal and the islands, specializing in providing integrated legal support across the main areas of law.

What is a Business Secret?

The definition of a business secret is based on three requirements:

• It is secret: the information, as a whole or in the precise arrangement of its components, is not generally known or easily accessible to people in circles that normally deal with such information.
  
• It has commercial value: the information has commercial value because it is secret.
  
• It is protected: its lawful holder has taken reasonable steps, under the circumstances, to keep it secret.
  

Examples of business secrets include:

• Client and/or supplier lists.
  
• Business models, strategies, practices, and plans.
  
• Market research.
  
• Product and service designs or technical specifications.
  
• Any other business-related information that is not public.
  

Legal Framework

Legal protection of business secrets in the European Union is established by Directive 2016/943. In Portugal, the framework is set by Decree-Law 110/2018, which approved the Industrial Property Code.

Lawful and Unlawful Acts

The acquisition, use, or disclosure of a business secret may be lawful when it results from an independent discovery or creation, or from observing a product made publicly available.

In contrast, acquisition is unlawful when it occurs without the holder’s consent, through unauthorized access, appropriation, or copying of documents. Use and disclosure are also unlawful when carried out without the holder’s consent by someone who acquired the secret unlawfully, or who is breaching a confidentiality agreement or duty not to disclose.

Employee Obligations

Employees have several obligations regarding business secrets:

• Maintain confidentiality of all secrets they have access to.
  
• Not disclose them to third parties, especially competitors.
  
• Use them exclusively within the scope of their professional duties.
  
• Not copy documents without express authorization.
  

These obligations remain in force even after the employment relationship or confidentiality agreement ends.

Liability and Protective Measures

In Portugal, the appropriation or disclosure of a business secret without consent may lead to civil, administrative, and criminal liability. Unlawful acts may result in compensation for damages and losses. They may also constitute a crime of breach of secrecy, punishable under the Penal Code, or a very serious economic offense.

At the request of the secret holder, courts may order interim or precautionary measures, such as stopping the use or disclosure of the secret or seizing infringing goods. Legal protection of a business secret remains in effect until it ceases to be a secret lawfully.

👉 Want to learn more about this topic? We’ll be hosting a new Webinar on October 1, 2025. Participation is free but requires prior registration through this form.

Pedro Rebelo Tavares
Lawyer at Raposo, Sá Miranda & Associados