The Frankfurt Local Court had to rule on the right to receive a free copy of the results of a German language test. Such requests for disclosure have recently become possible under data protection law. However, the court dismissed the corresponding lawsuit, arguing, among other things, that the exam questions constitute a trade secret of the exam provider. We had to take a closer look at this.
Background
According to a landmark decision by the Federal Administrative Court regarding Art. 15(3) of the GDPR, exam participants can request a free copy of their exam results because these constitute personal data.
This topic is particularly interesting for us here on the Geheimnisblog because the Frankfurt Local Court dismissed a lawsuit seeking the provision of such a copy (also) on the grounds of an existing trade secret. What exactly happened?
Facts of the case
The plaintiff failed a German B2-level language test offered by the defendant. The plaintiff is now asserting a claim for the provision of a free copy of her exam paper pursuant to Article 15 (3) of the General Data Protection Regulation (GDPR). The defendant raised data protection objections to the claim. Furthermore, it invoked a conflicting interest in confidentiality and referred to the German Act on the Protection of Trade Secrets (GeschGehG). During the proceedings, the defendant argued that the “language tests, which are also used in naturalization proceedings, require substantial financial investment and necessitate confidentiality to ensure the integrity and reliability of the results.” No further details are provided in the grounds for the decision.
The Regional Court deemed the complaint admissible but unfounded and dismissed it in its judgment of March 14, 2023.
Decision
In the view of the Local Court, the plaintiff’s claim is precluded by the defendant’s legitimate interest in confidentiality. The court affirms that the exam questions constitute a trade secret and states:
“In particular, the manual on the development and administration of language tests submitted as Exhibit B4 reveals a scientifically sound and complex procedure involving a large number of people, which also entails a significant economic investment. Accordingly, the exam questions also constitute trade secrets within the meaning of Section 2 no. 1 GeschGehG from a legal perspective and are language works protected by copyright within the meaning of Section 2 (1) no. 1 of the Copyright Act (UrhG).”
Furthermore, the court explains that publication could place the defendant at a competitive disadvantage because the exam questions might no longer be considered “sufficient” for the exam. Given the possibility of inferring the answers from the exam questions, the questions themselves should also be subject to restricted access. Nor does the fact that examinees can view the exams at the defendant’s premises contradict this assumption (Case No.: 31 C 2043/22 (78), full text).
Assessment – and some cautious remarks on the fundamentals of the GeschGehG
It’s always easy to grumble about court rulings when you’re not familiar with the briefs. Nevertheless, upon review, one gets the strong impression that a look at the law itself would have been of considerable help in reaching a decision here. This is an excellent opportunity for a brief exercise and refresher:
The term “trade secret” is legally defined in Section 2 No. 1 of the Trade Secrets Act (GeschGehG). If we examine this definition and compare it with the reasoning in the ruling, certain gaps become apparent:
A trade secret is information
a) that is neither generally known nor readily accessible, either in its entirety or in the precise arrangement and composition of its components, to persons in the circles that typically deal with this type of information, and is therefore of economic value, and
So here we have two characteristics: First (first characteristic), the information must be “secret” in the broader sense, that is, it must not be generally known or readily accessible within the aforementioned circles. Furthermore (second characteristic), the information must have economic value due to its secret nature.
The court does affirm the second characteristic, because its review has established that the exam questions are based on a scientifically sound, complex process involving significant economic expenditure. This finding is unlikely to be objectionable, especially since, according to general opinion, only minimal requirements need to be met.
However, the first element is completely disregarded. According to the facts of the case, the examination questions in question are for a German language test at the B2 level. The examination questions are not created individually for each examinee. Rather, an unknown number of candidates receive the same questions. It also seems obvious that the examination questions are reused. Against this background, it is virtually imperative that the element of general public knowledge be examined more closely. Furthermore, according to the court’s finding, the plaintiff had the opportunity to view the alleged trade secrets on the premises of the testing facilities. This, too, is difficult to explain without contradiction. In particular, it should have been sufficient for the plaintiff to dispute the existence of a trade secret on the grounds of lack of knowledge. The burden of presentation and proof regarding the existence of adequate confidentiality measures rests with the party invoking a trade secret (BeckOK GeschGehG/Fuhlrott GeschGehG Section 2, para. 66; here you will find our detailed article on the requirements in such proceedings). Since the use of the information in the exam was undisputed, the (further) denial of the confidential nature of the exam questions on the grounds of lack of knowledge was sufficient, and the court should have examined this issue in greater detail. Thus, the decision contains a first flaw at this point.
b) the subject matter is subject to confidentiality measures appropriate under the circumstances by its lawful owner
The requirement of “appropriate protective measures” is the central innovation of trade secret law. This element is not entirely new – after all, the law has been in effect since April 26, 2019. At the time the decision was rendered, this had been the case for just under four years. Nevertheless, the decision contains no discussion of this element of the offense.
We have already addressed the substantive requirements on several occasions, in particular in our comprehensive overview of case law (here) and, most recently, in a practice-relevant decision by the Higher Regional Court of Schleswig (here).
The Frankfurt Local Court’s reasoning in the judgment contains no indication that the defendant presented any arguments at all regarding confidentiality measures. In this case, it would have been sufficient for the plaintiff – as was done – to dispute the existence of a trade secret by claiming lack of knowledge. The burden of presentation and proof – including for appropriate protective measures – rests with the trade secret holder. If the defendant had presented any arguments regarding confidentiality measures, it would at least have been necessary to clarify whether the undisputed possibility of accessing the exam questions on the defendant’s premises undermined the appropriate protective measures. There is strong evidence to suggest that the Frankfurt Local Court overlooked an element of the legal definition in this case.
c) where there is a legitimate interest in confidentiality;
The court dealt with this element in considerable detail. At this point, however, the Local Court fails to consider that this element has little practical significance for ordinary cases involving trade secrets. At most, one could debate whether a legitimate interest within the meaning of Section 2 no. 1 is lacking if the secret consists of information regarding legal violations. However, this aspect was not relevant in the case at hand. Outside of the aforementioned point of contention, this element has no independent significance, so the court could have spared itself the trouble of addressing this aspect.
Conclusion
Access to exam questions is a matter of debate under data protection law. But that probably isn’t a case for the GeschGehG. Any event, in this specific case, it is not really clear how exam questions (after they have been used in an exam) can be declared a trade secret. Protecting trade secrets is not quite that simple after all. It is not surprising that an appeal was filed against the decision.