The data non-disclosure agreement guarantees the relationship between the two parties to keep information from third parties confidential. Most often, law enforcement agencies resort to it during a preliminary investigation and employers, recruiting new people. What are the legal features of this document, why is it needed, what is the responsibility for violation of a subscription, and is it possible not to sign it to a participant in the process?
The concept
A non-disclosure subscription is an agreement of two parties on the exchange of information, knowledge, materials in order to restrict access to them for third parties. This type of legal contract serves as a insurance against leakage of confidential information - from official secrets to personal data.
Kinds
Depending on the information transfer process, two types of non-disclosure subscription are divided:
- Unilateral - where one of the participants in the process transfers information to the other party with the condition of keeping it secret from third parties (the most common type of such document is an employment contract).
- Mutual agreement - both parties exchange information and undertake not to disseminate it (for example, during mergers or joint ventures).
In criminal law
A non-disclosure subscription is a fairly common way to avoid the leak of preliminary investigation data. The subscriber warns that the dissemination of pre-trial data is prohibited by law and is punishable under criminal law.
Information on the investigation of a crime is all the information from the moment the case was brought to its transfer to court proceedings or closure.
Who gets a non-disclosure subscription?
In the framework of criminal proceedings - from everyone who has a direct or indirect relation to the investigation. These may be witnesses, translators, experts, victims and other participants in the process.
It is worth noting that article 161 of the Code of Criminal Procedure does not directly prohibit the taking of a non-disclosure subscription from a suspect or accused. However, the Constitutional Court of the Russian Federation prohibits this. What can not be said about the defender of the suspect, from whom the investigator may require a non-disclosure subscription.
Under civil law, this may be required by one side of the other when concluding a specific contract. Labor law also governs the employer's ability to take an employee’s non-disclosure agreement. As a rule, this happens at the time of signing the employment contract.
What can not be disclosed?
In criminal procedural law there is no clear list of information that is not subject to disclosure. It is not possible to disseminate all data relating to the preliminary investigation, except for information that can be disclosed on the basis of Art. 161 Code of Criminal Procedure:
- violation of law by authorities;
- previously disseminated data by the investigator, prosecutor or inquirer in the media, on the Internet or in any other public way;
- pronounced in open court;
- permitted to be transferred by the investigator or the interrogating officer and to the extent that they allow.
Many human rights activists disagree with this, who believe that the investigator should indicate a list of information that is not subject to disclosure, and the reason for maintaining secrecy. This is only a public opinion - the law enforcement bodies are not obligated to this. Sample non-disclosure subscription should contain the place of compilation, date, full name a person who is obliged not to disclose the data of the preliminary investigation, the number of the criminal case and the data of the official who charges this subscription.
The disclosure of the data of the preliminary investigation is not considered to be the submitted information in the applications, petitions and complaints, which are sent as part of the pre-trial proceedings. Also, counsel and his client can discuss a criminal case, and this is not considered disclosure of data. But the lawyer cannot consult with his colleagues, since such an action would be considered a violation of the law.
A signature on non-disclosure of trade secrets must necessarily contain a list of information that is not subject to disclosure. Other data not falling under the current list can be distributed and transmitted.
Can I not sign a document?
It is possible, but dissemination of preliminary investigation data is not permitted. The investigator will bring two witnesses and record the refusal, after which the disclosure of the data will still be prosecuted.
For the employee or partner, the situation is even more hopeless - one will not be hired, and the other will be deprived of a profitable transaction or necessary information.
Data Disclosure Responsibility
According to the law, after signing the document, the dissemination of information entails criminal prosecution and provides for punishment:
- a fine of up to 80 thousand rubles or a percentage of income for six months;
- correctional work;
- arrest up to three months.
Over the past four years, only two people have been punished as part of a criminal prosecution for divulging information from a preliminary investigation. This is not a call for the dissemination of pre-trial data, but the figure shows the inconsistency of the evidence base of such cases.
According to paragraph 2 of Art. 139 of the Civil Code of the Russian Federation, for persons who signed an agreement on non-disclosure of trade secrets, liability is provided. Subsequently, one of the parties may sue to protect its interests, since the data could significantly affect the financial affairs of the company (the loss of profit is also taken into account).
The following sanctions may follow for an employee:
- disciplinary punishment;
- dismissal from work;
- recovery of liability.
A non-disclosure subscription is an important procedural document, it is simply impossible to violate it. There are certain opportunities to disseminate information, but they relate to either specific cases or specific individuals. The accused or suspect may well disclose information about the progress of the case to other persons and will not bear any responsibility for this. For other participants in the process, this is much more difficult. Nevertheless, to prove the guilt of a person for disclosing data in modern conditions, as the judicial practice shows, it is very difficult, although possible.
Under civil or labor law, an agreement on non-disclosure of trade secrets is taken from the employee when applying for a job or from the other side when entering into transactions and exchanging information. Proving the guilt of an employee or partner is much easier in civil proceedings. They are liable for the disclosure of trade secrets. For a company employee, this can be a fatal mistake, because the employer has the right to dismiss him for such an action.
A non-disclosure subscription is an effective way to avoid information leakage - from trade secrets to personal data. But far from always it gives absolute guarantees to keep information from prying eyes.