The Draft Law on the Protection of Trade Secrets Has Been Made Public

The Ministry of Trade has made public, for consultation, the Draft Law prepared as part of the effort to align the legislation on the protection of trade secrets with the EU Trade Secrets Directive.

The digitalization of commercial life, the widespread use of data-driven business models, and the increasing intensity of international competition have made the protection of trade secrets more important than ever for businesses. Against this background, the Draft Law on the Protection of Trade Secrets seeks, as a response to a long-standing need, to bring the fragmented body of trade secret rules under Turkish law into a more systematic and coherent framework.

The Draft defines trade secrets, determines which acts are to be regarded as lawful or unlawful, grants right holders specific protection mechanisms, and provides for consequences under both private law and criminal law.

The primary objective of the Draft is to prevent the unlawful acquisition, use, and disclosure of trade secrets, to regulate the sanctions applicable to such acts, and to ensure the effective protection of the trade secret holder’s rights. In addition, the Draft is intended to function as a framework law for trade secret protection by preserving other specific legislative provisions relating to trade secrets. In this respect, where there are special rules governing areas such as banking secrecy or customer secrecy, those rules would apply first, while the Draft would fill any remaining gaps.

The Draft introduces important criteria for the concept of a “trade secret.” According to the Draft, for information to qualify as a trade secret, it must not be generally known or readily accessible, it must have commercial value because it is secret, and the holder must have taken reasonable measures appropriate to the circumstances to preserve its secrecy. In particular, the criteria of not being known within the relevant sector, not being readily accessible, and the holder having a legitimate interest in preserving its confidentiality are of key importance. Accordingly, the Draft does not protect information merely because it is considered confidential; rather, it protects information that has economic value and has been actively safeguarded. As stated in the explanatory memorandum, a wide variety of information, such as customer lists, production methods, technical information, algorithms, source code, pricing policies, marketing strategies, and certain business organizations, may qualify as trade secrets depending on the circumstances of the specific case.

The Draft also regulates the ways in which trade secrets may be lawfully acquired. Disclosure with the consent of the trade secret holder, independent discovery or creation, and acquisition through the observation, examination, analysis, testing, or dismantling of a product or service that has been lawfully obtained or made publicly available are deemed lawful under certain conditions. In addition, access to information by employees, representatives, or agents in the exercise of their legal or contractual rights also falls within the scope of lawful acquisition.

The Draft provides broad protection against unlawful acquisition, use, and disclosure as well. Unauthorized access, copying of documents or electronic data, breach of confidentiality obligations, conduct contrary to restrictions on use, and benefiting from information known to have been unlawfully obtained are all listed as unlawful acts. Moreover, the Draft addresses not only direct infringements, but also “infringing products” that have emerged through substantial use of such trade secrets. In this way, it makes clear that trade secret infringement may have consequences not only at the level of information itself, but also at the level of products and services placed on the market.

The Draft also recognizes that, in certain circumstances, the acquisition, use, or disclosure of trade secrets will not constitute unlawfulness. Examples include the disclosure of unlawful conduct for the protection of the public interest, freedom of expression and dissemination of thought, freedom of the press and the right to information, employees informing their representatives for the performance of their duties, and the protection of legitimate interests recognized by law.

The Draft grants important civil law remedies to trade secret holders. Accordingly, the rights holder may request not only the prevention of the unlawful acquisition, use, or disclosure of a trade secret, but also compensation for the damages suffered. Various claims may be brought before the court, including determination of the infringement, prohibition of use and disclosure, recall or destruction of infringing products, elimination of the unlawful situation, and destruction or delivery to the claimant of documents and materials containing the trade secret. Claims for pecuniary and non-pecuniary damages are also expressly regulated. In calculating compensation, account is taken of the holder’s loss of profit, the economic effects caused by the infringement, and the gains obtained by the infringer. At a minimum, the amount may be based on a reasonable payment corresponding to the use of the trade secret.

The mechanism of preliminary injunctions is also regulated in detail. Given the nature of trade secrets, infringements often cause harm that is difficult to remedy. For this reason, the Draft allows various interim measures to be ordered before the conclusion of proceedings, including the temporary prohibition of use and disclosure, the prevention of the production and placing on the market of infringing products, the temporary seizure of such products, and the blocking of access to electronic data, documents, and materials.

In addition, the Draft places particular emphasis on the protection of trade secrets during judicial proceedings. Where it is asserted that information submitted to the court constitutes a trade secret and the judge is satisfied in that regard, measures may be taken to preserve the confidentiality of that information in whole or in part. Procedures such as limiting attendance at hearings, maintaining special confidentiality for information contained in the case file, and imposing confidentiality obligations on persons participating in the proceedings are intended to prevent the secondary disclosure of trade secrets during litigation. In this way, the Draft also aligns procedural law with trade secret protection.

Another important aspect of the Draft is that it regulates the framework under which trade secrets may be requested by public authorities and judicial bodies. Courts, public prosecutors’ offices, and certain public institutions carrying out supervisory activities may request information and documents falling within the scope of trade secrets, subject to the conditions set out in the law. Public institutions and organizations are required to state the reason for the request and the legal basis of their authority. Strict obligations of confidentiality, non-use, and non-disclosure are imposed on public officials and other persons who learn such information.

The Draft also contains criminal provisions. Imprisonment and judicial fines are envisaged for persons who unlawfully acquire, use, or disclose trade secrets, who benefit from such information despite knowing the infringing nature of the act, or who knowingly place infringing products on the market. Failure to comply with the obligation to provide trade secrets where legally required is also subject to sanctions. This shows that the Draft treats trade secret violations not merely as conflicts of interest between private parties, but also as broader infringements that may undermine economic order and relationships of trust.

When the general rationale of the Draft is examined, it becomes clear that the regulation arises not only from a domestic legal need, but also from the requirements of international trade, alignment with European Union legislation, and the digital economy.

There is no doubt that, if enacted, the Draft will not only fill an existing legislative gap, but will also provide a clearer and more systematic framework for many protection and enforcement mechanisms that have long been needed in practice. At the same time, the impact of the new regulation will not be limited to legal remedies invoked after a dispute has arisen; it will also directly affect companies’ day-to-day information management and confidentiality practices. In this context, it will become necessary to reassess information-sharing mechanisms in relationships with employees, consultants, suppliers, distributors, investors, and other business partners, particularly in relation to confidentiality agreements and non-disclosure obligations. Likewise, production, research and development, product design, technical documentation, data access, digital record systems, and internal authorization processes will need to be reviewed to ensure that they effectively serve the protection of trade secrets. Accordingly, enactment of the Draft will not only create a legal protection framework for businesses, but will also make it necessary to adopt a more institutional and compliance-oriented approach to identifying and classifying information that may qualify as trade secrets, restricting access to such information, controlling its disclosure to third parties, and supporting all such processes through demonstrable internal policies and procedures.