In summary, there would appear to be some downsides in the U.K. to using the Directive to bring a claim - the employer would need to show that they have taken reasonable steps to keep the trade secret confidential, which may include having adequate contractual and physical protections in place. The test for injunctive relief seems more involved than the current test, in that there are many questions that form part of the assessment whether to grant injunctive relief. However, the Directive opens up the possibility of seeking an account of profits rather than only damages, albeit dependent on the circumstances. It seems likely that there will be references to the CJEU on some of the more unclear parts of the Directive, especially the scope of the various carve-outs, so it may be some time before there is clarity on the precise scope of the Directive. There are also strategic issues to consider going forward as to whether to bring a claim under the implementing legislation of the Directive, under U.K. common law, or contract law. As the U.K. does not currently have a statutory definition of trade secret but only a definition of protectable confidential information derived from common law, it is possible in the future that there may be categories of confidential information that do not qualify as "trade secrets" under the implementing legislation and thus would need to be litigated using the common law definition as is currently (unless there is some form of prohibition in the implementing legislation). However, it could be that U.K. common law will be sufficiently influenced by the new definition to alter the interpretation of confidential information for the purpose of claims based on the current legal remedies rather than claims deriving from the Directive. Ultimately, it will be useful to have a baseline across Europe of protection for trade secrets even if the Directive leaves open the possibility of differences between member states.
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