NEWSLETTER-2020-metin

390 NEWSLETTER 2020 gies and expenses, market share, potential customers and customer networks, either wholesaler or retailer, contract connections, either subject to permission or not, and similar information and documents related to an entity or a company’s field of activity, which is known and attainable by a specific number of members or other personnel and, if known by competitors, the possibility of incurring losses has arisen, shall not be disclosed to third parties and the public, and has a high value for the entity or company’s economic success and productivity .” Criminal Sanctions Criminal sanctions for trade secret violation is regulated under Article 239 of Turkish Criminal Code numbered 5237. Accordingly, “A person disclosing or giving to unauthorized persons the informa - tion or documents qualified as trade secrets , banking secrets or cus- tomer secrets, and who acquired this information or documents due to his/her title, duty, profession or art, shall be sentenced to one to three years of imprisonment, and a judicial fine of up to 5,000 days shall be imposed, upon complaint. ” As designated under the third paragraph of the same Article, if these secrets are disclosed to a foreigner who does not reside in Turkey, or to his/her officers, the punishment will be increased by one-third, and the requirement of a complaint shall not be sought. Solutions to Avoid Trade Secret Misappropriation Even though employees are bound by a duty of confidentiality regarding their employer’s trade secrets as per Article 396(4) of the TCO , in practice, trade secrets are generally violated by dismissed employees, or those employees who have resigned. For this reason, including a clause on a duty of confidentiality in the employment con- tract would ensure that the employee comprehends this duty and, thus, would minimize the risk of infringement. In addition to the duty of confidentiality, non-compete covenants included in employment con- tracts would also prevent the employees fromusing their ex-employer’s trade secrets for their own benefit. The validity criteria established by the Court of Cassation precedents shall be observed while drafting the scope of non-compete covenants because, otherwise, the courts may deem the covenant invalid or narrow its scope in the event of a dispute.