Secrets in the sphere of economic activity subject to protection under criminal law

Abstract

This article analyses the scope of information subject to protection as constituting a specific type of secret in the sphere of economic activity, as well as the prerequisites for its protection by means of criminal law.
It is concluded that the following types of information in the sphere of economic activity, access to which is (or may be) restricted, are currently subject to criminal law protection: a) certain types of secrets (Part 2 of Article 209-1, Articles 231, 232 of the Criminal Code of Ukraine); b) insider information (Articles 232-1, 232-3 of the Criminal Code of Ukraine). In this context, it is proposed to equate insider information, in the criminal law sense and meaning, with information constituting a «secret» in the sphere of economic activity.
The normative definitions of the concepts of «financial monitoring secret», «trade secret», «banking secret», «professional secret in the capital market and organised commodity markets», as well as the concept of «insider information» have been analysed.
It is established that the regime for the protection of secrets in the sphere of economic activity is primarily aimed at protecting the interests of their owners (controllers) from harm that may be caused by their disclosure or unlawful use. In contrast, financial monitoring secrecy differs from other types of secrecy, as its protection is linked to ensuring the security of the state against harm that may be caused by crimes, the financing of terrorism and/or the financing of the proliferation of weapons of mass destruction and/or other illegal financial transactions. This raises the question of the appropriateness of a thorough analysis of the justification for placing the relevant provision in the section «Criminal Offences in the Sphere of Economic Activity».
The following generalised definition is proposed: a secret in the sphere of economic activity subject to criminal law protection is information regarding the status, certain characteristics and/or activities (including information of a technical, organisational, commercial, production-related and other nature) of a business entity, which the owner does not wish to disclose and which a person who has obtained it lawfully cannot disclose, as this may harm the interests of the relevant entity.
The issue of using criminal law measures specifically to protect relevant types of ‘confidential’ information in the sphere of economic activity remains outside the scope of this study and requires a separate and in-depth investigation.