As various media outlets have reported (here and here), Axel Springer Publishing has sent threatening letters to the representative of one of the women who testified in connection with the scandal involving Julian Reichelt. The allegation: The attorney is said to have “leaked” a transcript. The publishing house considers this a criminal violation of the German Act on the Protection of Trade Secret (GeschGehG). This sounds intriguing and gives us reason to take a closer look at the allegation.
Background
According to press reports, Axel Springer Publishing established a committee as part of an internal compliance proceeding against former editor-in-chief Julian Reichelt in the scandal involving abuse of power; several of the women involved were also heard by this committee. One of the women involved is represented by Berlin-based media lawyer Christian Schertz. The transcript of the hearing – containing the statements made by the woman represented by Schertz – has found its way to parties outside Axel Springer through unknown channels.
The publishing house is now alleging that either Christian Schertz or his client “leaked” these minutes to the media. According to reports, the Hamburg law firm KNPZ is said to have assessed this incident as a possible violation of the Trade Secrets Act and, in threatening letters, warned of criminal consequences. Christian Schertz rejects the accusation and explains that leaking the minutes would run counter to his client’s interests. Naturally, we cannot assess this due to a lack of knowledge regarding the facts and background. However, the legal questions underlying Axel Springer Verlag’s accusation are of interest.
Private information and Trade Secrets
According to Section 2 no. 1 a) GeschGehG, a trade secret is “information … 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 (…).”
The wording of the law thus does not directly assist in classifying information from a person’s private life. Private secrets are apparently not excluded from the scope of the law from the outset. However, the defining characteristic of a “trade secret” likely requires a certain distinction from private information. Furthermore, it seems questionable whether private information can possess “economic value.” Unsurprisingly, there is as yet no case law interpreting this element or addressing this question.
The Know-How protection directive appears to assume that private secrets are not intended to fall within the scope of the regulations. For example, Recital 1 refers to investments in the acquisition, development, and application of know-how and information by companies and non-commercial research institutions. Recital 2 compares the importance of trade secrets as a tool for ensuring business competitiveness with the importance of patents and other forms of intellectual property. Recitals 8 and 9 highlight the importance of uniform protection of trade secrets for the internal market and the reduction of business risks through adequate protection.
Overall, the legislator’s intent suggests that only information that has a (more or less direct) connection to the company should be protected as a trade secret.
Against this backdrop, it is only logical that legal literature points out that information concerning solely an entrepreneur’s private life does not constitute a trade secret. This should – correctly – also apply in cases where serious incidents involving an entrepreneur personally have an indirect impact on the company’s reputation (see Harte-Bavendamm, in: Harte-Bavendamm/Ohly/Kalbfus, GeschGehG, Section 2, para. 16, at the end). Alexander (in: Köhler/Bornkamm/Feddersen, UWG, 39th ed. 2021, Section 2 GeschGehG, para. 84) takes a different view, positing potential protection if the information is directly relevant to the company’s operations (e.g., the health condition of a senior executive). This view is not necessarily convincing in light of the cited recitals. While the CEO’s state of health may certainly have an impact on the stock price and its disclosure could be economically detrimental, this information is unlikely to have (direct) economic value for the company in the sense required by the Trade Secrets Directive.
Even if one were to agree with Alexander that certain important private information could constitute a trade secret, the information in the minutes would likely not meet that threshold. Here, a clear distinction must be made: The question of whether a key executive of a company has inappropriately exploited his position of power vis-à-vis female employees – and whether, if applicable, there is a fundamental problem in the corporate culture – can have economic value. This is confirmed not least by various reports in the (non-Springer) press, according to which the New York Times, in its coverage of the affair, also had its own interests and the role of the Springer Group as a competitor in the media market in mind (e.g., here and here). A potential final report by the Compliance Committee that reached such a conclusion could therefore constitute a trade secret, because such an overall assessment would have a negative impact on business opportunities and sales prospects, particularly in the U.S.
However, the minutes are unlikely to carry comparable significance. In all likelihood, the minutes contain factual details regarding one or more individual incidents between Julian Reichelt and a female employee, which may (or may not) be considered more or less substantial evidence of misconduct. The significance of this individual information is unlikely to be comparable to that of a final report, especially since it does not, in any case, provide evidence of possible systematic misconduct. Therefore, the information contained in the minutes is unlikely to constitute a trade secret as such. The same is likely to apply to the fact that the employee in question testified before the Compliance Committee as recorded in the minutes.
Ownership of private secrets by the company
Even if one were to view this differently, it would be necessary to question whether Axel Springer-Verlag is even the owner of the alleged trade secret. As a reminder: the relevant information consisted of the minutes of an employee’s testimony before an internal committee of the publishing house.
We may assume that it is not the questions posed by the committee members, but rather the employee’s statements that constitute the factual (not economic!) interest in the transcript. The information in question, therefore, pertains to specific facts that the employee recalls. As her own knowledge, the employee is generally entitled to use this information in any (lawful) manner.
Even the fact that the transcript may have been prepared by other employees of Springer Publishing does not mean that the publisher becomes the owner of the information embodied in the transcript. In this case as well, the employee remains authorized to disclose this information – her personal experiences.
Significance of a possible contractual confidentiality obligation
The question remains whether the assessment would change if – which we do not know – the employee had signed a confidentiality agreement regarding the contents of the committee meeting. Such a confidentiality agreement would certainly establish an obligation to restrict use or disclosure within the meaning of Section 4 (2) no. 2 or no. 3 GeschGehG. The employee would then have contractually obligated herself not to disclose the information.
However, such a contractual obligation does not result in the information becoming a trade secret whose disclosure has criminal law implications. Within the framework of private autonomy, contracting parties are free to agree to keep any information confidential. However, they cannot (of course) expand the scope of a criminal offense through the parties’ intent alone.
Conclusion
Information regarding an entrepreneur’s private life is protected by the Trade Secrets Act only in rare, exceptional cases. In the case of information regarding Julian Reichelt’s conduct toward female employees, protection under the Trade Secrets Act is unlikely to apply.