INDUSTRIAL ESPIONAGE UNDER TURKISH LAW

Companies operate with the fundamental objective of generating profit through the goods and/or services they develop by their own efforts or procure, from third parties. In a competitive market environment, the protection of such economic value becomes essential. In this regard, the unauthorized imitation or use of products, services, business methods, or similar elements by competing undertakings, as well as the unlawful acquisition or disclosure of information that ought to remain confidential constitute a serious threat to the interests of companies and results in tangible harm to the affected company.

In this context, one notable type of harmful conduct is industrial espionage. The purpose of this act is to obtain companies’ trade secrets without permission for the purpose of gaining an advantage.

Under Turkish law, espionage and similar crimes do not directly cover industrial espionage that may occur in the private sector. Espionage is primarily regulated in the seventh chapter of the Turkish Penal Code (“TPC”) titled “Crimes Against State Secrets and Espionage”, under a group of crimes committed against the security of the state or the internal or external political interests of the state.

In this regard, the elements of industrial espionage such as trade secrets and the protection of intellectual property have been mainly regulated through other statutory legal frameworks.

Therefore, the article will first consider the domestic legislative framework (1) and will thereafter address the corresponding foreign legal regimes (2).

1.    Legal Framework in Türkiye

According to the decision of the 23rd Chamber of the Court of Cassation dated 21 October 2019 (docket number 2016/6958, decision number 2019/4349), a trade secret in the narrow sense is an “information; (i) that provides economic benefit to a natural or legal person trader against their competitors, (ii) that is kept as a secret, and (iii) for which the owner has taken the necessary measures to keep it confidential.”In terms of criminal law, Article 239 of the TPC provides that “a person who discloses or reveals information or documents constituting a trade secret (…) to unauthorized persons”, by virtue of their position, duty, profession, or trade, shall be punished upon complaint with imprisonment of one to three years and a fine of up to five thousand days.

From a commercial law standpoint, pursuant to Article 54 of the Turkish Commercial Code(“TCC”), “deceptive or otherwise unethical behavior and commercial practices that affect the relationships between competitors or between suppliers and customers are unfair and unlawful.”

Article 55 of the TCC, titled “Conduct and Commercial Practices Contrary to the Principle of Good Faith,” classifies unauthorized use of others’ work products and unlawful disclosure of production and business secrets as unfair competition, respectively, in paragraphs (c) and (d) of its first clause. Article 62 of the TCC specifies the acts that require punishment as a result of unfair competition and the applicable sanctions.

Another important provision within the framework of trade secrets is set forth in Article 396/4 of the Turkish Code of Obligations. According to the relevant provision, “an employee shall not use or disclose to others, for their own benefit, information learned in the course of their work, particularly production and trade secrets, during the term of the employment relationship. To the extent necessary to protect the employer’s legitimate interests, the employee is also obligated to maintain confidentiality after the termination of the employment relationship.”

The final type of protection that may be mentioned in terms of industrial espionage is the opportunities provided within the framework of intellectual and industrial property legislation. Whereas the Industrial Property Law No. 6769 (in Turkish, “Sınai Mülkiyet Kanunu”) essentially offers registration-based protection, the Law on Intellectual and Artistic Works no. 5846 (in Turkish, “Fikir ve Sanat Eserleri Kanunu”) provides protection for the works created.

In conclusion, although Turkish legislation contains various regulations against the consequences of industrial espionage such as the disclosure of a trade secret, the industrial espionage itself is not regulated separately.

2.    Examples from Comparative Law 

In this section, the principal legal provisions pertaining to the matter have been discussed through two different jurisdictions.

2.1.    France 

In France, regulations that can be used against the consequences of industrial espionage exist, in accordance with both European Union legislation concerning trade secrets and national legislation. However, as is the case with Turkish legislation, French lawmakers have not separately regulated industrial espionage.

In this context, French law interprets industrial espionage in a manner similar to Turkish law, primarily through the prisms of trade secrets, criminal law, intellectual and industrial property law and contract law.

With respect to the matter, reference may primarily be made to the following provisions:

•    Article L152-1 of the French Commercial Code provides that the violation of trade secrets will result in the legal liability of the person committing the violation.
•    The French Obligations Code protects the holder of a trade secret from unfair competition that may result from the use of the trade secret. Compensation for damages resulting from unfair competition is interpreted in terms of the tort described in Article 1240 of the relevant code.
•    Article 226-13 of the French Penal Code punishes the breach of professional secrecy with one year’s imprisonment and a fine of EUR 15,000 if committed by a person to whom the secret has been entrusted by virtue of their duties, profession, or temporary assignment or function.
•    The French Intellectual Property Code provides protection, primarily based on registration for intellectual and industrial property.
•    While industrial espionage is not interpreted as a separate crime, the transfer of information to a foreign country is addressed in the “Treason and Espionage” section, specifically in Articles 411-6 to 411-8 of the French Penal Code.

2.2.    United States of America

Unlike Türkiye and France, industrial espionage involving trade secrets is separately regulated in the United States of America mainly through acts from the standpoint of economic espionage. In this regard, two legal instruments emerge as significant. These are the Economic Espionage Actand the Defend Trade Secrets Act. 

The Economic Espionage Act of 11 October 1996 “contains two separate provisions that criminalize the theft or misuse of trade secrets”.*

In this respect, while “the first provision of the said act targets foreign economic espionage and requires that the theft of trade secrets be for the benefit of a foreign government, agency, or agent, the second provision criminalizes the more common theft of trade secrets, regardless of whose benefit it is for”.*

In this framework, moreover, Defend Trade Secrets Act of 11 May 2016 giving to the owner of a trade secret that is misappropriated the possibility to bring a civil action “if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce”.

In conclusion, it may be observed that the subject matter has generally been interpreted through the framework of trade secrets and other related legal categories. The elements of industrial espionage have been interpreted differently by various countries, leading to divergent legal responses.

* Criminal Resource Manual, Introduction to the Economic Espionage Act, https://www.justice.gov/archives/jm/criminal-resource-manual-1122-introduction-economic-espionage-act 

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