Term and Definition of Confidentiality
Confidentiality (German: Vertraulichkeit) refers, in a legal context, to the obligation not to make certain information or data accessible to third parties without authorization. The principle of confidentiality is of central importance in many areas of law, especially in data protection, contract law, criminal law, corporate law, employment law, and in the context of non-disclosure agreements (NDAs). The aim of confidentiality is to protect sensitive information from unauthorized access, disclosure, or use.
Legal Basis of Confidentiality
Aspects of Data Protection Law
In data protection law, the requirements for confidentiality are primarily governed by the European Union’s General Data Protection Regulation (GDPR). Art. 5 para. 1 lit. f GDPR obliges controllers and processors to protect personal data against unauthorized access, disclosure, or further processing through appropriate technical and organizational measures.
Non-Disclosure Obligations under Data Protection Law
In addition to technical measures such as encryption and access controls, data protection law often requires specific non-disclosure agreements from employees and external service providers to ensure confidentiality is maintained. Breaches of these obligations can result in extensive civil and regulatory sanctions.
Aspects of Contract Law
In contract law, confidentiality is regularly contractually established through so-called non-disclosure agreements (NDAs). These agreements regulate which information is considered confidential, who may have access to such information, and how violations are to be handled.
Contents of Non-Disclosure Agreements
Typical provisions include:
- Definition of the protected subject matter (e.g. trade secrets, internal business information)
- Duration of confidentiality obligation
- Sanctions in the event of a breach
- Handling of confidential information during the course of cooperation as well as after the end of the contract
A breach of such an agreement may lead to claims for damages as well as injunctive relief.
Aspects of Employment Law
Confidentiality also plays a significant role in employment relationships. Employees are subject – even without an explicit clause in the employment contract – to a statutory duty of confidentiality regarding sensitive business information pursuant to Section 17 of the Act Against Unfair Competition (UWG) and Section 203 of the German Criminal Code (StGB), insofar as it concerns professional secrets such as those of doctors, lawyers, or similar professions.
Protection of Trade Secrets
The Act on the Protection of Trade Secrets (GeschGehG) stipulates that companies must take appropriate measures to protect the confidentiality of their trade secrets. A breach can result in both civil law consequences and criminal sanctions.
Foundations in Corporate Law
In corporate law, shareholders and corporate bodies of both corporations and partnerships are often obligated to treat internal matters confidentially. This serves to protect trade secrets and strategic business data and is part of the duty of care and loyalty of board members.
Obligation of Confidentiality in Corporate Shareholdings
In shareholder agreements and articles of association, confidentiality obligations for shareholders, managing directors, and supervisory board members are usually explicitly defined. A violation may lead to exclusion from the company and a claim for damages.
Criminal Law Dimensions
In criminal law, protection of confidentiality is particularly relevant for certain professional groups (Section 203 StGB – Violation of Private Secrets). Breaches are punished with fines or imprisonment.
Persons Subject to Professional Confidentiality
Persons subject to professional confidentiality include, among others, physicians, legal counsel, psychologists, social workers, or pharmacists. They are obliged to treat information entrusted to or known to them in the course of their work confidentially.
Areas of Application and Distinctions
Distinction from Related Legal Concepts
Confidentiality must be distinguished from the terms data security and data protection: while data security focuses on technical and organizational protective measures, data protection aims to protect personal data as a whole. Confidentiality, on the other hand, refers to the general secrecy of certain information, regardless of whether it involves personal or company-related data.
International Regulations
The term is also of particular significance in the international context. In Anglo-Saxon legal systems, especially under common law, confidentiality and the associated implied terms play an important role in commercial contracts. International transactions are often accompanied by NDA frameworks to ensure mutual confidentiality.
Legal Consequences of a Breach of Confidentiality
Civil Law Consequences
A breach of confidentiality can lead to claims for injunctive relief and damages. In the case of serious breaches, extraordinary termination of contractual relationships or employment contracts is also possible.
Criminal Sanctions
Violations of confidentiality may be prosecuted under criminal law depending on the protected interest and the information concerned. Severe penalties are possible, particularly in cases of trade secret theft or the violation of private secrets.
Disciplinary Measures
Within companies or organizations, violations may trigger internal disciplinary measures such as warnings, transfers, or termination.
Importance of Confidentiality in the Digital World
As a result of digitalization and the associated networking of business processes, confidentiality is becoming increasingly important. Observance of confidentiality obligations is a key factor when dealing with cloud services, outsourcing, big data, artificial intelligence, and remote work environments. Companies are increasingly relying on technical solutions such as encryption, authorization concepts, or anonymization to ensure compliance with confidentiality.
Conclusion
Confidentiality is a fundamental principle in the legal handling of sensitive information. It plays an important role in almost all areas of the modern economy, the public sector, as well as with personal data and medical or company-related secrets. Compliance with confidentiality obligations is regulated by national and international standards; violations are subject to civil, labor, and criminal law penalties. Both companies and private individuals are required to take appropriate measures to protect confidential information in order to meet legal requirements and avoid economic disadvantages.
Frequently Asked Questions
What are the legal foundations for confidentiality in Germany?
The legal foundations for confidentiality in Germany are diverse and depend on the particular context. In civil law, the German Civil Code (BGB) plays a central role, especially regarding trade secrets (Section 823 (2) BGB in conjunction with the Trade Secrets Act – GeschGehG). The handling of personal data is governed primarily by the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG), which set out detailed requirements for confidentiality and the protection of sensitive data. In employment law, statutory non-disclosure obligations are found in Sections 611a, 241 BGB, as well as supplementary provisions in employment contracts and works agreements. For certain professional groups (such as physicians, lawyers, notaries), special provisions apply, for example the duty of confidentiality pursuant to Section 203 of the German Criminal Code (StGB). Additionally, in international business relationships, contractual confidentiality agreements (NDA – Non-Disclosure Agreements) are often necessary, the content of which is determined in German law according to the principles of contractual freedom but may be limited by statutory restrictions such as those found in the law on standard business terms (Sections 305 ff. BGB).
What legal consequences can be expected if confidentiality is breached?
The breach of confidentiality can have both civil and criminal consequences. Civil claims may include claims for damages (Sections 280, 823 BGB) and injunctive relief against the party who unlawfully discloses information. Furthermore, the disclosure of trade secrets may lead to claims under the Trade Secrets Act (GeschGehG), such as injunctive relief, removal, compensation, and the surrender of any profits obtained. Criminal liability may arise in accordance with Section 203 StGB (violation of private secrets), Section 17 UWG (trade and business secrets), or other special statutes depending on the circumstances. Sanctions range from fines to imprisonment. Professional consequences, such as the withdrawal of professional licenses or permits, may particularly affect those subject to professional secrecy requirements.
When is the disclosure of confidential information legally permissible?
Disclosure of confidential information is generally only permitted if a corresponding statutory permission exists or with the consent of the data subject. According to Section 203 StGB, persons subject to professional secrecy (such as doctors, lawyers) may only disclose information if there is express consent from the data subject or a legal exception applies (e.g. reporting obligations under Section 138 StGB). In a corporate context, disclosure may be justified by a legitimate interest, issued instructions, or within the scope of contractually agreed exceptions. Under data protection law, the GDPR allows the processing and, if necessary, disclosure of personal data only if there is a legal basis such as consent, performance of a contract, legal obligation, or legitimate interest (Art. 6 GDPR).
What requirements apply to non-disclosure agreements (NDAs) under German law?
Non-disclosure agreements must be clear, understandable, and transparent in Germany. Essential requirements include a precise designation of the confidential information, the purpose of the disclosure, the group of obliged parties, and the duration of the secrecy obligation. If NDAs are used as general terms and conditions, they are subject to content control under Sections 305 ff. BGB, which is intended to prevent unreasonable disadvantage to the contractual partner. Furthermore, contractual penalties are often included for security, the amount of which must be proportionate. It must also be regulated how confidential information is to be returned or destroyed after the contract has ended.
Are there exceptions to the statutory duty of confidentiality for persons subject to professional secrecy?
Yes, exceptions are provided by law. Section 203 StGB allows disclosure where there is at least presumed consent from the holder of the secret or authorization to disclose based on a legal provision (for example, in the context of criminal investigations, notification obligations for certain diseases under the Infection Protection Act, or to avert serious dangers). Disclosure may also be permitted within the framework of cooperation with other persons subject to professional secrecy (collaboration), provided that strict requirements are met. The exceptions must be interpreted narrowly to protect the core area of the relationship of trust.
How long does the legal obligation of confidentiality last?
The duration of the obligation of confidentiality depends on statutory, contractual, and contextual provisions. Persons subject to professional secrecy, such as physicians and lawyers, are generally under a confidentiality obligation for an unlimited period, which continues even after termination of the employment relationship. Contractual agreements (NDAs) usually specify a concrete period (e.g. 2, 5, or 10 years after termination of the contract), provided that this does not conflict with mandatory legal provisions (e.g. consumer protection). In data protection law, the obligation of confidentiality usually ends only after personal data has been fully deleted or the purpose of processing no longer exists.
What evidence is available in disputes concerning breach of confidentiality?
In the event of a dispute, the burden of proof lies with the party alleging the breach of confidentiality (“Whoever asserts something must prove it”). Evidence may include emails, written statements, contracts, minutes, or witness testimony. Technical evidence, such as log data, forensic reports, or audit-proof archiving records, is also becoming increasingly important. The requirements for proof vary depending on the parties and the subject of secrecy; in the case of trade secrets, there is generally a greater obligation to document. Legal enforcement usually takes place in the context of civil proceedings or, in the case of breaches of professional secrecy, also by means of criminal complaints.
