I'm not afraid of your NDA

This is a loud and terrible abbreviation of three not decent letters. If you want to participate in the tender, get a job, you need to get the data - they slip this piece of paper on you, they say, sign it first, or else they found fools without an NDA to tell you something. At the same time, in most cases you will not learn anything top-secret or commercially important, but the procedure for signing the NDA has become a kind of sacrament of dedication, which the parties do not really think about the meaning.

It is the same as you will inevitably receive a requirement along with the constituent documents to provide an extract from the Unified State Register of Legal Registration not older than 30 days. Although everything is available online, everyone prints this extract from the Internet, assures it and sends it to the counterparty, who does not even look at it, because everything is on the Internet. Well, you understand, in short, the domestic love of the sacraments.

Some theory

Let's make a reservation at once that we are talking now about commercial relations. Because state secrets, official secrets and personal data is a completely different topic. So, the NDA is, in our opinion, “non-disclosure of confidential information”. It does not sound so menacing, but still not entirely clear. Let's figure it out.
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Purely philistine, what's the point in this piece of paper? So that you do not sling something important that can give an advantage to competitors or destroy a company. And in what form? Agreement. Well, that is a contract. The civil code of the Russian Federation (Civil Code of the Russian Federation) is responsible for contracts. If you read the table of contents to the Civil Code of the Russian Federation do not read, it is very large , then you will not find such an agreement there. But there is nothing terrible in this, since only the most common (or important) contracts are named in the code, but no one forbids inventing your own contract or inventing a new one with another law. In the Civil Code of the Russian Federation for this case, special general rules have been created governing the relations of the parties.

In order to somehow settle the wild imagination of the writers of any kind of NDA, the legislator made the whole law “ On Trade Secrets ”. You can read, it is small - a few pages. After reading this creation, many begin to attend gloomy thoughts.

Under Russian law, in order for the NDA to work, you need to fulfill the requirements of this law, i.e., set the mode of confidential information. And what to do? For this we go to paragraph 1 of Art. 10 of the Law on Trade Secrets:

1. determine the list (!) of information constituting a commercial secret;
2. establish the procedure for handling such information and the procedure for monitoring compliance with such an order;
3. restrict access to such information (including physically);
4. keep records of all persons who have access to such information or to whom it was transferred;
5. make clauses in contracts with employees that oblige to abide by all of the above and familiarize them with all these orders and orders;
   
   An exception

   PI without workers, respectively, should not do this, plus it does not apply to paragraphs. 1 and 2, which is logical otherwise looks like some kind of schizophrenia.
   
6. finally sign the NDA with the counterparty;
7. before transferring the information, put the “Commercial Secret” stamp on tangible media or documents and indicate the owner of the information;
   
   Practical example

   As an example, an excerpt from the decision in case N A40-83833 / 15-15-646 : " Neither the Agreement nor other documents relating to the dispute in question have a stamp or marking" Commercial Secret "and are not subject to trade secrets.
   Thus, the Contractor did not violate the terms of the Confidentiality Agreement of March 6, 2013, the Customer’s requirements for the recovery of a penalty in this part are illegal and unreasonable . "
8. only then transmit this information.

And as we are told paragraph 2 of Art. 10 of the Law on Trade Secrets, if you have not fulfilled at least one of the above conditions, then your NDA is anything, but not the NDA.


In fact, this is not bureaucratic cavils. If you carefully re-read the requirements, then this is essentially the minimum standard of proof. Without one of these points, can it be definitely established that the information is really important and has gone without your knowledge? It's hard.

Why do I need to comply with the law?

Good question. For your own good. Because the confidential information mode gives you a wide range of whips:

1. Disciplinary responsibility of the employee until the dismissal.
   
   
   Excerpt from the labor code

   The employment contract may be terminated by the employer in the following cases: disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties, including the disclosure of personal data of another employee (sub. "In" 6 hours 1 of article 81 of the Labor Code of the Russian Federation)
   
2. Administrative responsibility under Art. 13.14 of the Administrative Code (mockery with penny fines).
   
   
   Article text

   Disclosure of information, access to which is restricted by federal law (except for cases where disclosure of such information entails criminal liability), by a person who has access to such information in connection with the performance of official or professional duties, except as provided for in paragraph 1 of Article 14.33 of this Code ,
   shall entail the imposition of an administrative fine on citizens in the amount of from five hundred to one thousand rubles; on officials - from four thousand to five thousand rubles
   
3. Administrative responsibility under Art. 14.33 of the Administrative Code for unfair competition. Everything here is much more serious, but things are much more complicated.
   
   
   Article text

   1. Unfair competition, if these actions do not contain a criminal offense, with the exception of cases provided for in Article 14.3 of this Code and Part 2 of this Article - shall entail the imposition of an administrative fine on officials in the amount of from twelve thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
   
4. Criminal liability. Joker. The most important amulet. Part 2 of Art. 183 of the Criminal Code.
   
   
   Excerpt from the criminal code

   2. Illegal disclosure or use of information constituting commercial, tax or banking secrets, without the consent of their owner by the person to whom she was entrusted or became known for her job or work, is punished with a fine of up to one million rubles or in the amount of wages or other a convicted person’s income for a period of up to two years with the deprivation of the right to hold certain positions or engage in certain activities for up to three years, or correctional labor for up to two years, or forced labor for up to three years, or imprisonment for the same period.
   
5. Well, yes, contractual liability and all sorts of losses, of course. Including from government agencies that have disclosed the information you provided upon request.

Such bonuses exist because a properly established procedure simplifies the procedure for proving the violation of your rights. Indeed, if it is possible to establish a route for passing information more or less reliably, then questions arise to the other side. Your job requires much less.

What now, I wiped my NDA ... not to protect myself?

No, but now we can come to the question, but what exactly is the NDA in domestic spaces, if not to take those rare exceptions, when they still introduced the notorious mode of confidential information?

As we found out, the parties can conclude any contract. Let it be a fake NDA. What does a standard NDA look like? “ Bla-bla-bla, I undertake not to disclose everything received, bla-bla-bla, I will be liable in accordance with the law .” Well, OK. What is the responsibility? Since the Law on Commercial Secrets is not valid in our case, we turn to the Civil Code. The only thing there is is a loss (clause 2 of article 15 of the Civil Code of the Russian Federation).


With them an ambush. Cases of damages one of the most difficult. Because they are difficult to prove. You need to provide strong evidence that:

1. Losses exist and they arose from the disclosure of information.
2. To substantiate the amount of damages from disclosure. Not necessarily accurate, but you should at least try to bring calculations not out of your head.
3. Evidence of the guilt of just such a “disclosing person”, that is, that information leaked precisely from this side. In short, the culprit culprit.
4. Causal link between the actions of the perpetrator and the resulting losses.

In each of these points there is a whole forest of ambushes and a stockade. Accordingly, we are now talking more about the bare theory, because without the correct mode of information protection (to hell with the law, we are now talking about the actual actual complexity) it is very difficult to present and justify the chain to the public - “I gave, and he publicized”. Although in the field of IT it is easier in some cases. For example, issued access to the software on the side to track on the idea is easier.

It means, nevertheless, wiped ... not to defend oneself?

No, some advanced lawyers put extra responsibility on the NDA. For example, a fine of 1 million euros. No, I'm not joking. For some reason, I have never met adequate fines. Indeed, in each case, information is transmitted of colossal, phenomenal importance, so we disagree for less than a million. Although in this size it is not going to claim life. If you show at least some activity in court, then surely you will cut it many times.

Well, OK. What helps fine? The fact that this is a partial replacement for damages!

Referring to the source. P. 1 of Art. 330 of the Civil Code of the Russian Federation tells us: “A penalty (fine, interest) is a sum of money determined by a law or contract that the debtor is obliged to pay to the creditor in the event of non-performance or improper performance of the obligation, in particular in case of delay in performance ”. But the most important thing (!) " On demand for payment of the penalty, the lender is not obliged to prove the loss caused to him ."

All victory? Not until the end. Return to the list of four items necessary for proving in case of losses. Reread? Now, attention! In the event of a penalty, you will need to prove only one point - about the culprit of the perpetrator. That is just a violation of the agreement. Yes, it's still very hard, but it's four times lighter! Although, in some cases, zero to zero will still be zero.

Can you think of something else?

Can! But this is a creative legal work. True, I have not yet seen this in the NDA texts , only I inserted it myself . Perhaps because the norm is new. But in other contractual disputes already applied. There is such an interesting article 406.1 of the Civil Code of the Russian Federation, and its first paragraph tells us: “ Parties to an obligation, acting in their business, may, by their agreement, provide for the obligation of one party to compensate the property losses of the other party, arising in the event of circumstances specified in such agreement and not related to the breach of an obligation by his party . ”

That is, all four points are removed from the list of losses. You just need to prove the fact of occurrence of the circumstances, which you stipulated. For example, the secrets of production went for a walk on the Internet and the contract no longer makes sense to you, since the benefits of having secret information are no longer there.

An important addition: it’s losses that come from the text of the article! This is not a payment in any way. Not your income. You will need to incur losses, or show that they are inevitable. Otherwise, if you have not lost anything from disclosing information, then in this case you will not be protected by law. The article prescribes the procedure for determining losses, that is, you have agreed that if this happens, you will fall into it. If you "miscalculated", then this is your problem.

But this is generally quite a slippery topic, because from the contract and the relations of the parties it should clearly be seen that it is interesting to both parties and normal for market relations. It will be necessary to justify the judge, why the other side decided to take the risks of such circumstances. Otherwise, in the event of a dispute, there is a high probability of running into the fact that such a contract will be recognized as an insurance contract, which means the agreement on compensation for losses will be declared invalid. So use at your own risk. There is no judicial practice at all.


Well, no one bothers you to combine in one agreement and a penalty, and compensation for losses. This is not considered a double liability, because of liability here is only a penalty. Compensation of losses is simply a fee that is not related to the breach of obligations by the party to the agreement.

Anticipating Questions

And I heard how money was collected, and the regime was not in compliance with the rules.

Easily. The lawyer of the customer wrote in the contract beautiful phrases about confidentiality. The contractor’s lawyer checked them. No one heard about the regimes. The judge also did not understand much, because the parties did not dispute the information protection procedure itself. So they figured out what is. I suspect that of the few disputes that still exist in the courts on the subject of disclosures, most are based on incorrect mode. But no one disputed, then everything suits everyone. Moreover, there are a lot of failures in recovery of damages according to NDA.

And if there is no agreement at all, then everything is possible?

Actually, no. Although it will be difficult to convince the judge. But in general, this is justified as follows.

1. Parties to an obligation must act in good faith.
   
   
   An excerpt from the Civil Code

   In establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations should act in good faith (clause 3 of Article 1 of the Civil Code of the Russian Federation).
2. If you still acted badly, then you are forbidden to take advantage of it.
   
   
   An excerpt from the Civil Code

   No one has the right to take advantage of their illegal or unfair behavior (clause 4 of article 1 of the Civil Code of the Russian Federation).
3. You must take into account the interests of the other party, even after the termination of the contract.
   
   
   An excerpt from the Civil Code

   When establishing, fulfilling an obligation and after its termination, the parties are obliged to act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the goal of the obligation, as well as providing the necessary information to each other (clause 3 of Article 307 of the Civil Code).
4. Even if you received such information at the negotiations, and the contract was never concluded, you should not disclose it.
   
   
   About negotiations

   If during negotiations on the conclusion of a contract, a party receives information that is transmitted to it by the other party as confidential, it must not disclose this information and not use it improperly for its purposes, regardless of whether the contract is concluded. In case of violation of this duty, it must compensate the other party for damages caused as a result of disclosing confidential information or using it for its own purposes (clause 4 of Article 434.1 of the Civil Code of the Russian Federation).

And in some cases, the law says that certain information received by a party to the obligation, even without a trade secret regime, receives protection. But the responsibility, again, is a loss or a penalty specified in the contract.

They gave me a secret stamp, but how do I know that they have done the rest?

From nowhere. Must perform. But if a dispute arises, be sure to put in court the question of whether a trade secret regime has been introduced. This fact will have to be proved by the party that declared the violation of the NDA. And if the conditions of the Law on Commercial Secrets are not met, then the dispute becomes essentially a full-fledged proof of damages. I have already written about the complexity of such cases.

At the same time, remember that the standard letter ending, describing which top-secret information this letter contains, is usually not a transfer of confidential information, but a “letter to the village of a grandfather”. Because, as you remember, the trade secret regime requires tracking who and to whom the specific information was transmitted. And if this mail was not specified in the contract and who owns it, then the Law on Commercial Secrets will be quite difficult to apply.

And I generally work with foreigners, what then?

I'll tell you so. I do not know. Not the fact that an agreement with a foreign counterparty means foreign law. There are whole rules for determining applicable law (called conflict of laws). But if, after all, the law is foreign, how is the NDA regulated in them only by the lawyer of the respective country. Other laws, other judicial practice, other traditions. I can only advise to break through the clause that Russian law applies to the terms of the agreement.

And in what form should the agreement be?

No special requirements. You can include an item in the contract. You can make a separate agreement. And both before and after the signing of the agreement. And in some cases, the law says that you can simply list information that you consider confidential in the contract, and it is already protected.

So what will I get for the NDA?

To be honest, the chances that you will fall for responsibility for disclosing confidential information are few. This is a rather rare topic in our courts. As you already understood, if the fines are not spelled out, then few people will want to get involved with losses. But remember that if the office has entered the labor regime of a trade secret, then the Damocles sword of criminality hangs over you. Well, from a commercial point of view, there are more risks caused by termination of the contract due to disclosure. And yet, let's not forget about ethics and business reputation. This is something that should be worth it!