Disclosing professional secrecy: duty or crime?

When it comes to professional secrecy, the law provides contradictory duties. On the one hand, reporting employees – whistleblowers – are obliged to disclose data or information related to the reported facts[1]. On the other hand, if the reporting persons, whether public officers or private employees, disclose work-related secrets or information not destined for the public, they could be liable for a criminal offence.

In the first scenario, according to the Draft Law on Protection of Whistleblowers transposing Directive (EU) 2019/1937 (the "Draft Law"), while the reporting as such is left at the discretion or goodwill of whistleblowers, once they reveal information on breaches that have arisen in a professional context, they must give additional information related to the reported facts based on the principle of responsibility.

Penalties and liability

The Draft Law does not provide sanctions for whistleblowers failing to comply with this obligation. Furthermore, they are exempt from liability[2] on condition that certain legal requirements are observed and that whistleblowers have justified reasons to believe that the disclosure is necessary to expose a breach of the law.

In judicial proceedings aimed at violations such as disclosure of trade secrets, whistleblowers will not be held liable as a result of internal reports or public disclosures. Moreover, they have the right to invoke the reporting or public disclosure to pursue the closure of the case.

If a person internally reports or publicly discloses information and this information includes trade secrets, the internal reporting or public disclosure will be deemed legal under Art. 3(2) of Government's Emergency Ordinance No. 25/2019 on the protection of know-how[3].

Conversely, the Romanian Criminal Code sanctions the act of disclosing information classified as a professional secret or non-public[4].

Only with conditions

Certain essential conditions must be met for an act of disclosure to constitute a criminal offence. One is that any information classified as a professional secret might be serious enough to cause damage to public or private entities, once disclosed. Thus, there should be a clear prohibition as to the disclosure. In this respect, companies may declare any sensitive information, such as internal regulations, corporate decisions and the like, to be secret or not destined for the public

Another condition is that the disclosure of non-public information should be distinguished from red-flagging, i.e. bringing already known information to public attention. Thus, the revealing must induce a state of fear or danger in the person concerned by the disclosed information.

Where professional secrets are disclosed by a public officer, the law assigns more severe criminal penalties, while if any individual, regardless of their professional status, reveals secret information and/or information not destined for the public, the penalty is not as severe and may consist of a fine.

Given the above, there is a risk that reporting persons might take advantage of the exonerating circumstances (defences to criminal liability) set out in the Draft Law to justify potentially illicit activity, e.g. leakage of trade secrets, based on allegedly grounded reasons/legitimate interest.

As a famous British judge once said, "Confidential information is like an ice cube... give it to the party who has no refrigerator or will not agree to keep it in one, and by the time of the trial, you have just a pool of water."[5]

[1] Art. 4 (General principles) of the Draft Law on Protection of Whistleblowers. The Draft Law transposing Directive (EU) 1937/2019 into national legislation is currently undergoing the legislative process in the Chamber of Deputies before being sent to the president for promulgation.

[2] Art. 21 in the Draft Law (Defences to liability)

[3] The acquisition, use or disclosure of a trade secret will be deemed lawful to the extent that it is required or permitted under European Union or national law.

[4] Art. 304 of the Romanian Criminal Code (disclosing information which is subject to professional secrecy or not destined for the public).

[5] Lord Donaldson M.R., in the Spycatcher case (1987).

author: Magdalena Roibu