Term and Definition of Industrial Espionage
Industrial espionage refers to the targeted acquisition of business and trade secrets by unauthorized third parties, often for the economic benefit of the information gatherer and to the detriment of the affected company. In contrast to economic espionage, which is typically carried out by state-directed actors, industrial espionage primarily targets private-sector interests through companies or individuals.
The main objectives of industrial espionage include technical innovations, manufacturing processes, strategic planning, market analyses, customer data, or other trade secrets, the knowledge of which holds economic value for competitors.
Legal Classification of Industrial Espionage
Relevant Criminal Law Provisions
In German law, industrial espionage is primarily regulated by the Criminal Code (StGB). The following are central:
Section 17 UWG – Disclosure of Trade and Business Secrets
Section 17 paragraph 1 of the Act Against Unfair Competition (UWG) makes the intentional disclosure, use, or passing on of trade and business secrets a criminal offense if the action is carried out without authorization and for the purpose of economic advantage. Attempted acts are also punishable.
Section 18 UWG – Communication of Trade and Business Secrets to Foreign Entities
According to Section 18 UWG, it is also a criminal offense to pass on trade and business secrets to foreign companies or organizations. This is particularly relevant in cases of cross-border industrial espionage.
Sections 202a ff. StGB – Spying Out and Intercepting Data
Sections 202a, 202b, and 202c StGB establish the criminal liability for spying out data, intercepting data, and preparing these acts. These provisions enable the prosecution of industrial espionage that utilizes modern information technology and hacking attacks.
Section 823 BGB – Compensation for Infringement of Protective Rights
Section 823 of the German Civil Code (BGB) gives the aggrieved company civil law claims for damages in cases of unlawful infringement of trade secrets or patent rights.
The Trade Secrets Protection Act (GeschGehG)
A milestone in German law for protection against industrial espionage is the Trade Secrets Protection Act (GeschGehG), which came into force on April 26, 2019. This implements EU Directive 2016/943 and comprehensively sets out the requirements and protection of trade secrets.
Definition and Protection Requirements
According to Section 2 GeschGehG, a trade secret is only eligible for protection if reasonable protective measures have been taken. Companies must therefore establish effective internal and external processes to safeguard confidential information in order to qualify for legal protection.
Claims and Legal Consequences
The GeschGehG provides for claims for injunction, removal, damages, and recall of unlawfully obtained products. Criminal sanctions are also provided for (Section 23 GeschGehG) if trade secrets are unlawfully acquired, used, or disclosed.
International Aspects and Cross-Border Industrial Espionage
Industrial espionage is often a cross-border phenomenon. International agreements such as the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights) of the World Trade Organization and bilateral treaties regulate the worldwide protection of trade secrets and intellectual property.
Within the European Union, Directive (EU) 2016/943 harmonizes minimum standards for the protection of undisclosed information. National law must comply with these international requirements.
Civil and Criminal Sanctions
In addition to criminal sanctions, affected companies may assert civil claims, particularly for:
- Injunction and Removal
- Destruction of Unlawfully Obtained Materials
- Recall and Surrender of Materials
- Damages and Disclosure of Scope of Use
Sanctions may also include employment law consequences for employees involved in industrial espionage, including immediate dismissal and claims for damages by the employer.
Prevention and Corporate Protection
Companies are required to implement their own measures to defend against industrial espionage. This includes:
- Technical protective measures (e.g., IT security, encryption)
- Organizational measures (e.g., access rights, employee training)
- Contractual safeguards (non-disclosure agreements, compliance regulations)
Only through verifiable, reasonable protective measures can statutory claims be fully enforced in the event of damage.
Summary and Outlook
Industrial espionage is a complex phenomenon with far-reaching legal implications. The protection of economically sensitive data is comprehensively regulated by a network of civil and criminal law provisions. In addition to state prosecution mechanisms, internal corporate prevention measures are especially crucial in order to effectively claim legal protection.
Ongoing digitalization and international networking are setting new standards and challenges for protection against industrial espionage, so companies should regularly review and adapt their protective measures. The legal framework is constantly being further developed to effectively address new forms of threats.
Frequently Asked Questions
What are the criminal consequences of industrial espionage in Germany?
Industrial espionage is considered a criminal offense in Germany and is primarily regulated by the Criminal Code (StGB), especially in Sections 17 ff. and Section 202a StGB. Anyone who unlawfully obtains and uses or discloses trade or business secrets for their own or another’s benefit faces severe penalties. Possible sanctions range from fines to several years of imprisonment. It is differentiated as to whether there is a competitive relationship between perpetrator and victim, or whether there is an intelligence interest (espionage activity for a foreign state). In serious cases, a particularly severe case may be assumed, leading to increased penalties. In addition, offenders can be held civilly liable, for example through claims for damages, and may be subject to a professional ban if misuse of professional secrets is established.
What procedural particularities apply in the prosecution of industrial espionage?
Investigative authorities enjoy far-reaching powers when investigating suspected cases of industrial espionage. Due to the often covert nature of such acts, telephone surveillance, searches of premises, and online searches are often authorized if there is sufficient initial suspicion. However, requirements for the protection of trade secrets play an important role: to prevent unauthorized disclosure of sensitive data, investigation files are often anonymized or not fully accessible. Proceedings may also be conducted non-publicly upon request to spare the affected companies from harm. Lastly, cooperation with law enforcement agencies of other states is also relevant, particularly in cases of cross-border data theft.
What rights do victims of industrial espionage have in criminal proceedings?
Companies affected by industrial espionage may act as joint plaintiffs in criminal proceedings and thus influence the process. They also have the right to access case files to obtain information about the status of investigations. Affected companies may appear as witnesses and also assert claims for damages or injunctive relief in appropriate civil proceedings. Moreover, they can request that certain information be treated confidentially during the proceedings to protect their trade secrets. They also have recourse to interim injunctions to civilly prohibit the further use or dissemination of stolen information.
Are there options for international legal enforcement in cases of industrial espionage?
Yes, in cases of cross-border industrial espionage, international agreements apply, such as the Convention on Cybercrime (Budapest Convention) or mutual legal assistance agreements between EU member states and third countries. Cooperation may include extradition of perpetrators, mutual assistance in investigations, or the transfer of evidence. In practice, however, international enforcement is challenging, as different legal systems have varying requirements and penalties. Often, differences in jurisdiction and willingness to cooperate delay effective prosecution.
What civil law claims can injured parties assert?
In addition to criminal consequences, the Civil Code (BGB) provides numerous civil law claims. Among the most important is the claim for damages pursuant to Sections 823 ff. BGB, if financial loss has demonstrably resulted from industrial espionage. An injunction claim under Section 1004 BGB may also be available to prevent further use or dissemination of unlawfully obtained information. The injured party may also assert a claim for surrender of the gained benefit pursuant to Section 812 BGB (unjust enrichment). In cases of copyright or patent infringements, the respective special laws apply in addition. Frequently, civil lawsuits are filed in parallel to criminal proceedings in order to compensate economic damages as comprehensively as possible.
What role do compliance measures play from a legal perspective within a company?
From a legal perspective, appropriate compliance measures can help reduce a company’s liability risks regarding industrial espionage. Companies are required to actively protect themselves against economic crime, particularly the loss of trade and business secrets. If protective measures are neglected and damages occur, managing directors can be held liable (liability under the Stock Corporation Act or the Limited Liability Companies Act). On the other hand, if effective protective mechanisms are demonstrably implemented, this may reduce criminal penalties or mitigate civil claims against the company. Compliance structures thus serve not only prevention but are also essential for damage limitation and the avoidance of liability.
