Criminal prosecution of misuse of trade secrets and stricter sanctions for cybercrime violations
Trade and business secrets concern the most sensitive aspects of entrepreneurial operations and are often decisive for the success of a company. The Austrian legislator most recently introduced civil law provisions to protect against the misuse and unlawful use of trade secrets with the 2018 amendment to the Unfair Competition Act (Sections 26a et seq.).
As of 1 September 2023, the criminal prosecution of cases of misuse of trade secrets is tightened to strengthen know-how protection and keep Austria attractive as a business location for entrepreneurial research activities.
The maximum penalty for violating trade secrets will be significantly increased (Sections 122 to 124 of the Criminal Code and Sections 11 and 12 of the Unfair Competition Act). Violating or spying on a trade or business secret will in the future be punishable by up to three years of imprisonment. The criminal provisions under Sections 11 and 12 Unfair Competition Act also provide for an increased prison sentence of up to one year or a fine of up to 720 daily rates in the future.
In the future, jurisdiction for the main proceedings in the criminal prosecution of these offenses will be bundled with the single judge of the criminal regional court.
Of great practical relevance for the companies concerned is that in the future – after authorization of the person concerned – the criminal violation or disclosure of a trade or business secret will be prosecuted and investigated ex officio by the public prosecutor's office. This change to an “authorization offense” instead of a “private prosecution offense” removes a significant hurdle for the companies concerned, which so far regularly had to conduct an extensive and costly forensic investigation to gather the necessary facts for filing a criminal charge and also bore the litigation cost risk in these criminal proceedings.
With the expected changes to the law, the significant cost risks for the company concerned is avoided and there is also the prospect of gaining information from the prosecution’s investigations that can aid to substantiate civil (damage) claims against the offender.
Besides the protection of professional and business secrets, the legislator has also proposed an expansion of punishments to counter the rapidly growing violations in the field of cybercrime. The latest Cybercrime Report of the Austrian Federal Criminal Police Office for the year 2022 shows an annual increase in reported cases in the field of cybercrime by an average of 30% in the last 5 years.
The legislator intends to counter this development by expanding the maximum punishment for the offenses of §§ 118a, 119 and 119a Criminal Code (unlawful access to a computer system, violation of telecommunications secrecy and abusive interception of data).
Please note: This blog is for general information purposes only and in no way constitutes legal advice from Binder Grösswang Rechtsanwälte GmbH. The blog cannot replace individual legal advice. Binder Grösswang Rechtsanwälte GmbH accepts no liability of any kind for the content and accuracy of the blog.