Förstärkt skydd för företagshemligheter, SOU 2008:63 - Regeringen

Summary SOU 2008:63such that it falls within the area protected by the fundamental laws(Constitution).Scope of criminal liabilityOur remitThe Inquiry was assigned the task of analysing whether the penalprovisions contained in the FHL have been worded in a manner fitfor purpose. We were also required to pay particular attention inthis context to the issue of whether criminal liability should beextended to also cover a person who, without authorisation, usesor discloses a business secret to which they gained access withinthe scope of their duties. This remit has also included adopting aposition on whether the range of penalties for offences under theAct is appropriate.Is there any reason to extend criminal liability?The business operator whose business secrets are attacked may incurconsiderable losses. Attacks on business secrets (whether to gainaccess, exploit or pass on information) also involve the distortion ofcompetition to the detriment of society as a whole. Those workingwithin the business operator's business must often have access tobusiness secrets to perform their duties, which may put the businessoperator into a vulnerable situation. The judgment in the 'Ericssoncase' demonstrates deficiencies in the current rules. This case involved,among other things, an employee who had access to business secretsin their work and who disclosed them to another person who in theirturn disclosed them to Russian intelligence agents. The prosecutionof the employee for participating in grave corporate espionage wasrejected, while the person who provided the details to the agentswas sentenced to eight years in prison for grave espionage.The Swedish Criminal Code contains provisions whereby anemployee's attack on business secrets, to which they have access intheir work, is punishable in certain situations. However, subject tosome exceptions, these provisions are not designed with the directintention of criminalising such an attack, but instead are directed atother kinds of conduct. This means that it can often be difficult to30