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July 20, 2021

Comment: Does the Remote Working Model Pose a Threat to the Effective Protection of Trade Secrets?

Author: Shreya Kunwar

The concept of ‘Work from home’ has become commonplace and the pandemic has compelled even those industries/offices to work from remote locations that would normally not allow employees to access any work-related content outside of the traditional work space. The prevailing circumstances certainly, in my view, pose a greater risk to the effective protection of trade secrets than ever before.

The secrecy of such trade secrets can be of high commercial value to its owners. Offices and work locations have had, however, to suddenly accommodate access to and handling of trade secrets from homes of employees and consultants. Procedures and technologies to guard against abuse have been slower to devise and install. 

The reason why I think the Work from Home set up poses a particularly hard challenge over breach of trade secrets is that the monitoring of day-to-day activities carried on by employees is extremely difficult in a Work from Home setup as compared to a traditional work environment. Moreover, the crippled economy and the increased number of termination of employees, even from the highest rungs of position has further led to an increase in the number of disgruntled employees who are more susceptible to influence by third parties and might collude with them for personal gains. In the absence of a proper mechanism, it is not possible to monitor all employees actively as in a Work from Home set up. Vulnerability to hacks and data breaches has also increased. 

In light of the virtual work mode scenario, it can be easy to blame accidental breaches or hacks upon third parties and attempt to get away from facing accountability for such unethical and illegal actions. In such scenarios, innocence and mala fide intentions are not easily discernible from each other and identifying the source of the hack is a challenge. 

The solution to combat these problems could be to have a Non-Disclosure Agreement in place and the repercussions for any breaches should be clearly stated in such agreements. A well equipped cyber security and IT department should be involved to manage the information stored over the servers even if in encrypted formats and stringent security protocols should be in place. Further, each person involved in the management of or having access to trade secrets should be made aware of the consequences in case of misappropriation. 

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Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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