Litigating trade secrets in China: an imminent pivot to cybersecurity?

The globalization of supply chains and digitization of corporate processes have resulted in both advantages and disadvantages for trade secrets management. Most trade secrets today are stored in digital environments, readily transferable through the cyberspace, and accessed remotely (including possibly overseas) by the relevant employees; very few of these secrets, related to the most traditional branches of industries that find it difficult to dematerialize, originate physically or are not subsequently digitized in order to be stored, transferred and/or protected. Such protection, though, is only relatively safe. The negative side of mentioned trends is that when trade secrets are located in the cyberspace-for example, in Internet-connected devices, or in the so-called 'cloud', or even in corporate intranets-they can also be accessed and sometimes misappropriated by unauthorized individuals or entities (mostly external to the company) from literally anywhere in the world. It is no surprise that trade secrets misappropriations occur mostly this way, to an extent which is unprecedented and forced this issue on the policymakers' agenda, both domestically across several jurisdictions and globally via relevant international organizations. Indeed, not only does the economic value of the misappropriated secrets seem to increase dramatically year by year, but the nature of these crimes is changing too: if up to a couple of decades ago most unauthorized accesses to (and thefts of) trade secrets were performed physically by insiders and thus, obviously, fell within the reach of a specific jurisdiction, today companies and policymakers are confronted with thefts which extend on a transnational scale, originating all new problems in terms of inter alia prosecution, enforcement (eg of preliminary injunctions), recovery, evidence gathering and preservation, and award of damages. 'Trade secret laws exist to provide companies with a way of protecting their private knowledge from theft. However, industrial espionage predates the security concern over hackers using computers to steal IP.'¹ Provided that certain companies and secrets are strategic for states themselves, different countries have been trying to respond to these challenges by updating their legislation or introducing new trade secrets-specific provisions, so that cyber-enabled misappropriation could face serious legal consequences domestically and even, when applicable, on the international plane.