Ana Frazão discusses the limits of company secrecy in court and arbitration proceedings
New column article Constitution, Company and Market, from the portal JOTA, Professor Ana Frazão asks how reconcile the protection of business secrecy with the right to proof, contradictory and effective jurisdiction. The theme gains weight with the digital economy, in which many illicit conducts are practiced by opaque algorithms.
Business secret is not immunity
The article recognizes the importance of company secrecy to preserve the value created by economic agents and conditions of competition. But remember, if he's treated as absolute, he could become a real immunity before state or arbitral jurisdiction. According to the author, art. 206 of the Industrial Property Law itself admits the breach of secrecy in judgment, provided that there are due precautions.
Highlight Phrase:
"The secrecy of a company does not confer – and cannot confer – absolute protection on its holder in evidentiary terms."
Procedural solutions for a possible balance
The teacher proposes some paths for the judges:
- consistent criteria for defining what business secrecy is;
- adequate distribution of the burden of justifying secrecy and breach, including to avoid fishing expeditions;
- granularized procedural secrecy, with versions of the documents with stripes;
- confidentiality clubs, in which only a few lawyers, experts and the judge access the complete proof;
- date rooms.
The text cites decisions of the STJ, such as the Take Off case and the figure of the digital inventor. It also warns of the risks of absolute protection of the source code in the digital economy.
Highlight Phrase:
"If the protection of the code is absolute, the agents who use it will have a true immunity to violate other people's rights without those affected being able to prove the violation."
The article reinforces Ana Frazon's contribution to the debate on business law, competition and proceedings.
🔗 Read the full article in JOTA: https://www.jota.info/opiniao-e-analysis/columns/company-and-market/company-and-process secret
