Approach to implementation 

The law of confidence in the UK already covers trade secrets, and provides protection against their unlawful acquisition, use or disclosure (including the preservation of confidentiality during legal proceedings), and hence satisfies many of the standards of protection provided in the Directive. However, the UK Government believes that it is necessary to implement a number of provisions of the Directive by way of secondary legislation, in order to cover certain perceived gaps and to ensure transparency and consistency across the UK's legal jurisdictions (in particular as the current position is not harmonised between England & Wales, Scotland, and Northern Ireland). In practice, this has resulted in a significant number of the provisions of the Directive being transposed directly into the implementing legislation.

Stage of legislative process 

The implementing legislation is contained in The Trade Secrets (Enforcement, etc.) Regulations 2018 [2018 No. 597] ("the Regulations"), which were laid before Parliament on 18 May 2018. 

 
Timescale for implementation 

The Regulations came into force on 9 June 2018, i.e. in compliance with the Directive implementation deadline.

Noteworthy points arising from the legislative changes 
  • The Regulations make clear that trade secrets (as defined in the Directive) are a de facto subset of confidential information which is protected by the law of confidence in the UK. Accordingly, in so far as the measures, procedures and remedies available in an action for breach of confidence provide wider protection to a trade secret holder than that provided under the Regulations, the trade secret holder may apply for those (wider) measures, procedures and remedies in addition, or as an alternative, to those provided for in the Regulations.

  • Article 14 (1) of the Directive provides that Member States may limit the liability for damages of employees towards their employers for the unlawful acquisition, use or disclosure of a trade secret where they act without intent. However, the UK Government considers that there is no need to implement this provision as UK courts are able to exercise discretion to ensure damages are fair and proportionate.