Förstärkt skydd för företagshemligheter, SOU 2008:63 - Regeringen

SOU 2008:63SummaryHas the Act been an obstacle?It is difficult for several reasons to respond to the question ofwhether the FHL has been an obstacle to employees complainingabout and exposing serious maladministration at their own placesof work.We consider that the Act per se does not as such imply any suchobstacle. Instead, the obligations of employees not to disclose anymatters concerning the workplace are connected to the duty ofloyalty that accompanies an employment relationship. The rulescontained in Section 2, first and second paragraphs of the FHLcomprise, as regards the kinds of information referred to in theprovision, an exception to the employee's duty of confidentialityunder a special confidentiality agreement or owing to the generalduty of loyalty. This involves such matters that may be suspectedof constituting a criminal offence for which imprisonment may beimposed or matters that may be deemed to constitute some otherserious maladministration in the business operator's business.A critical stance has been adopted in certain quarters regardingthe impact of the Act on the opportunities of employees to expresstheir views. However, it is difficult to express an opinion on the scaleof this criticism or the extent to which it is based on knowledge ofthe content of the Act in this respect. One aspect of this may bethat the consequences of the FHL and the consequences of contractualconfidentiality and competition clauses or the general dutyof loyalty are not always abundantly clear to the individual.Currently, the term 'business secret' does not embrace informationabout a circumstance that constitutes a criminal offence or whichmay otherwise be unacceptable from a public perspective. In orderto clarify the matter, we propose that a new third paragraph beintroduced into Section 1 of the FHL, whereby information abouta circumstance that constitutes a criminal offence or other seriousmaladministration will never constitute a 'business secret'.We also think that there is a need to clarify in the statutory textthat the Act does not apply if it would conflict with the provisionson freedom of the press or freedom of expression contained in theFreedom of the Press Act or the Fundamental Law on Freedom ofExpression. Such a reminder, which should be incorporated in anew paragraph in Section 2 of the FHL, is intended to remindthose applying the Act to consider whether the alleged attack is29