§ 11 UWG – Violation of Trade or Business Secrets

§ 11 UWG protects confidential company knowledge from disclosure and unfair use. This refers to information that is economically valuable to a company, is not generally known, and is therefore protected by appropriate confidentiality measures. This may include customer lists, pricing structures, internal calculations, technical processes, or sensitive bid data. An offense is committed by anyone who unlawfully discloses such secrets as an employee during the employment relationship, or who unlawfully obtains such a secret and subsequently uses or disseminates it for competitive purposes. The law thus protects not only the affected business but also fair competition, as no one should gain an unfair advantage through the misuse of another’s know-how.

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Legal Protection under § 11 UWG

§ 11 UWG protects trade and business secrets from unauthorized disclosure and use. The aim of the provision is to protect companies from competitive disadvantages that can arise when confidential information reaches competitors or is used for external purposes.

Information for which there is a legitimate economic interest in its secrecy is protected. If such information is released uncontrollably, it can lead to significant disadvantages for the affected company and distort competition.

Acting for the purposes of competition

Criminal liability under § 11 UWG requires that the act is carried out for competitive purposes. The term “competition” describes the economic rivalry between companies or individuals competing for the same customers, contracts, or market shares.

For an act to be considered for competitive purposes, the requirements of a competitive relationship and competitive intent must be met.

Competitive relationship

A competitive relationship exists when two or more companies operate in the same market and compete for the same customers or business opportunities. The parties do not have to be direct competitors. It is sufficient if the action is capable of improving a company’s competitive position against other market participants.

Competitive intent

Competitive intent means that the perpetrator consciously aims to promote their own competition or the competition of another. The mere disclosure or use of a secret is not sufficient. It is crucial that the action is specifically undertaken to gain an economic advantage in competition.

Definition of Trade and Business Secrets

The protection of § 11 UWG requires the existence of a trade or business secret.

A trade secret concerns commercial or economic information of a company. This includes customer lists, pricing structures, calculations, or marketing strategies.

A business secret refers to technical or organizational processes, such as production methods, technical drawings, or special manufacturing processes.

For protection under § 11 UWG to apply, several conditions must be met. The information must relate to the company, must not be publicly accessible, and the company must have a legitimate interest in maintaining confidentiality.

The information must relate to the company and must not be generally known or readily accessible. Furthermore, there must be a legitimate economic interest in its secrecy. It must be evident that the company actually wishes to keep the information confidential and takes appropriate measures to maintain confidentiality.

Distinction from Generally Known Information

Not every piece of information from a company is automatically protected. It is crucial that the content is not publicly known or readily accessible. As soon as information is freely available or can be obtained with little effort, legal protection ceases.

Generally known data includes, for example, information that has already been published or results from usual market observations. Experiences and skills acquired by employees during their work are also generally not part of the protected area.

However, such knowledge can become part of the protected area if it goes beyond mere experiential knowledge and concerns specific, confidential company information. The decisive factor then is no longer the employee’s personal ability, but the confidential nature of the information.

Disclosure of Secrets under § 11 para. 1 UWG

Employees often gain access to confidential information in the course of their professional activities, which can be of significant value for the company’s competitiveness. For this reason, § 11 para. 1 UWG criminalizes the unauthorized disclosure of such information under certain conditions.

A disclosure of secrets occurs when an employee discloses a trade or business secret, which was entrusted to them or otherwise became accessible due to their employment relationship, to other persons without the company’s consent. The form of disclosure is irrelevant. Both oral communications and written or electronic transmissions can fulfill the offense. Merely making confidential information accessible can be sufficient.

However, a prerequisite is that the disclosure is made for competitive purposes and is thus aimed at promoting one’s own competition or the competition of another.

Employee

Not every person in a company’s environment automatically falls under the term “employee.” The term “employee” is interpreted broadly and includes all persons who are integrated into the operational organization due to an employment relationship and thereby gain access to internal information.

This includes workers, salaried employees, apprentices, and interns. Under certain circumstances, managing directors or other senior employees can also be considered employees. The decisive factor is not the specific position within the company, but the integration into an employment relationship and the resulting access to confidential information.

However, independent contractors or other persons who are not in an employment relationship with the company are not covered. Nevertheless, they may be held accountable under other provisions, particularly under § 11 para. 2 UWG, if they unlawfully obtain or exploit trade or business secrets.

Obtaining Secrets through the Employment Relationship

For § 11 para. 1 UWG to be applicable, it is necessary that the employee obtained the relevant information precisely due to their employment relationship. The secret must either have been expressly entrusted to them or have become accessible to them due to their activity.

Thus, there must be a connection between the professional activity and the knowledge of the secret. This is the case when an employee gains insight into customer lists, calculations, technical documents, or internal company strategies due to their position. However, it is not required that the information is expressly handed over. It is sufficient that access was enabled by the activity within the company.

Disclosure of Information During an Active Employment Relationship

The disclosure of secrets is only punishable if it occurs during an active employment relationship. This means that the protection is particularly strong as long as the person is still employed by the company.

A disclosure already exists if a third party is given the opportunity to access the information. It does not matter whether the information is actually used. Merely making it accessible can be sufficient.

After the termination of the employment relationship, other regulations apply. Nevertheless, the handling of confidential information remains legally sensitive even afterwards. In such cases, the provisions on the protection of trade secrets according to §§ 26a et seq. UWG, as well as civil law claims of the affected company, may apply.

Exploitation of Secrets under § 11 para. 2 UWG

The protection of trade and business secrets is not limited to employees of a company. § 11 para. 2 UWG also covers persons who are not in an employment relationship with the secret holder but unlawfully use or disclose confidential information to others.

An exploitation of secrets occurs when confidential information is used commercially or made accessible to other persons. It is not necessary that a competitive advantage is actually achieved. It is sufficient that the action is aimed at promoting one’s own competition or the competition of a third party.

Therefore, anyone who has gained knowledge of another’s trade or business secret may not exploit or disclose it without the consent of the authorized company if this is done for competitive purposes.

Use of Illegally Obtained Information

With this provision, the legislator prevents persons from gaining economic advantages from external knowledge, even though they have not obtained the underlying information lawfully.

An economic use exists in particular when the perpetrator uses the information to improve their own products or services, develops competing offers based on it, or specifically uses it to acquire customers.

It is not decisive whether economic success actually occurs. The mere use of the information is sufficient, provided it is for competitive purposes.

Disclosure to Third Parties

In addition to one’s own use, the disclosure of trade or business secrets to other persons is also covered. Anyone who discloses confidential information enables other persons to use this information for their own purposes and to derive economic advantages from it.

Disclosure is understood to mean any form of making accessible. It does not matter whether the information is made known to a large number of people. Communication to a single person can already be sufficient.

Particularly problematic is the disclosure to competitors or to persons who are in an economic relationship with the competition. By disclosing confidential information, they can improve their market position without having developed the relevant knowledge themselves.

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Unlawful Acquisition of Trade or Business Secrets

Not only the use, but also the acquisition of a secret can be unlawful. The law thus protects companies not only from the betrayal of already known secrets, but also from targeted attempts to obtain confidential information.

The law prohibits obtaining trade or business secrets through unauthorized methods. This includes both violations of laws and conduct that, while not necessarily criminal, violates the rules of fair competition. The aim of the provision is to protect companies from third parties gaining access to confidential knowledge through unlawful methods.

Acquisition Through Unlawful Acts

A particularly clear form of unlawfulness exists when the acquisition violates applicable law. The unlawfulness arises already from the unlawful acquisition of the information. Whether the person later uses the secret is irrelevant.

This includes actions such as theft, fraud, bribery, or other unlawful access to confidential information.

This includes actions where legal limits are exceeded to obtain data. Such approaches deeply infringe upon the rights of the affected company.

Acquisition Through Unfair Conduct

In addition to legal violations, the provision also covers cases where information is obtained through unfair conduct. Unfair conduct occurs when someone gains access to confidential information in a way that contradicts the principles of fair competition.

Such cases arise when someone deliberately attempts to obtain information in an dishonest or covert manner. The focus here is not on breaking the law, but on unfair conduct.

This includes targeted espionage, obtaining information through deception, or other actions that, while not necessarily criminal, are considered immoral or anti-competitive.

Internal Aspect of the Offense

For criminal liability under § 11 UWG, it is not sufficient that a trade or business secret is actually disclosed, used, or disseminated. The law also requires that the perpetrator has a certain internal attitude towards their actions. In legal science, this is referred to as the subjective element of the offense.

The subjective element of the offense concerns the question of what the perpetrator knew, intended, or at least considered possible when acting. It examines whether the person acted consciously and knew what they were doing. At the same time, the action must be aimed at promoting their own competition or the competition of another. In this way, the law ensures that not every accidental or unintentional disclosure of confidential information is criminal.

Intent

For criminal liability under § 11 UWG, the perpetrator must act intentionally. They must therefore recognize or at least consider it possible that the information in question is a trade or business secret. At the same time, they must be aware that their action leads to the disclosure, dissemination, or use of this confidential information.

This means that the perpetrator must at least recognize that the information is confidential and that the company does not want to make it public. The action must not be merely accidental, but must be consciously undertaken.

This may particularly apply to:

• the conscious disclosure of confidential information to third parties,
• the targeted use of internal company information for one’s own purposes,
• knowledge of the economic importance and confidentiality of the information.

If this awareness is lacking, for example, because the person mistakenly believes the information to be publicly accessible, there is generally no intent. A merely negligent or accidental act is not sufficient for criminal liability under § 11 UWG.

Legal Consequences of a Violation

A violation of § 11 UWG can have both criminal and civil law consequences. Affected companies have several options to take action against the unauthorized use or disclosure of their secrets.

It is crucial that the legislator not only sanctions the perpetrator but also provides the company with instruments to limit the damage incurred and prevent future violations.

Criminal Law Consequences

Anyone who violates § 11 UWG must expect a court penalty. Depending on the severity of the violation, fines or imprisonment may be imposed. The aim is to effectively sanction and deter unfair conduct.

A special feature is that § 11 UWG is a private prosecution offense. A private prosecution offense is a criminal offense that is not automatically prosecuted by the public prosecutor’s office. Instead, the injured party themselves must initiate criminal proceedings and act as a private prosecutor. The legislator assumes that primarily the interests of the affected company are violated and that it should therefore decide whether criminal prosecution should take place.

For companies, this means that they must act actively in the event of a violation. Without a corresponding private prosecution, there will generally be no criminal sanction against the perpetrator. A quick reaction is therefore often crucial to effectively enforce one’s rights.

Civil Law Consequences

In addition to criminal law, companies also have civil law claims at their disposal. These aim to compensate for the damage incurred and prevent further violations.

The focus is on the possibility of taking direct action against the perpetrator and holding them accountable. It is particularly important for companies to react quickly to avoid further disadvantages.

Typical claims include:

• Cessation of further violations
• Compensation for incurred losses
• Elimination of unlawful conditions

In practice, the possibility of quick judicial protection is particularly important. In the event of an impending or actual violation, companies can apply for an interim injunction under § 24 UWG. This can immediately prohibit the further use or disclosure of trade or business secrets, even before a final proceeding is concluded.

These claims make it possible to actively combat the misuse of trade secrets and protect one’s own competitive position.

Your Benefits with Legal Assistance

Especially with trade and business secrets, high economic values and complex legal distinctions are often involved. Even small errors can lead to claims being lost or a procedure failing. Early legal support ensures that you secure and effectively assert your position.

A lawyer not only helps you with the legal assessment but also with the strategic approach, for example, whether criminal proceedings, civil claims, or both are appropriate. At the same time, they ensure that all prerequisites are clearly proven, which is often decisive in practice.

Your specific advantages:

• Quick assessment of whether a protected secret actually exists
• Targeted enforcement of claims, such as injunctions or damages
• Secure evidence collection so that violations can be prosecuted at all

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Frequently Asked Questions – FAQ

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