Disclosure of information and/or documents that are commercial secrets, banking secrets and/or customer secrets

An examination of the Criminal Law on the "Disclosure of Information and/or Documents that are Commercial Secrets, Banking Secrets and/or Customer Secrets." constitutes the subject of this work. This crime is defined in the Article 239 of the Turkish Criminal Code Numbered 5237 – enacted in 01.06.2005 – under Section 3, "Crimes against the Community" and subsection 9; under four paragraphs "Crimes related to Economy, Industry, and Commerce". Paragraphs 1 and 2 of the Article define the crime as the "disclosure of the information and documents which constitute Commercial, Banking, Customer secrets and information regarding Scientific and Industrial Discoveries and Inventions and the applications thereof, which are acquired either legally as per the perpetrator's duties, professions or titles, or acquired illegally in any way possible from unauthorized persons. While the Third paragraph defines the aggravating circumstances related to the crime, the Fourth paragraph defines the Crime as "Forcing an individual to disclose such secrets via threats or violence", and attributing to this crime a punishment that is more severe than those that are defined in the first three paragraphs. With the development of technology nowadays, the subject that is the protection of secrets that belong to the Legal and Real persons against unauthorized persons who would harm their personal and economic interests gains considerable importance each day, owing to the difficulty of prevention of such cases. Owing to the digitalization of the World, all manner of personal and economic data, information and documents are being kept in online systems, further increasing the risk of the illegal acquisition thereof. Alongside the compromise of personal lives, it is inevitable that the commercial and economic life and activity would be considerably hindered by the acquisition of information and documents that constitute secrets belonging to Banks and Corporations – Primary actors of commercial activity- by unauthorized persons. For this reason, we believe that the crimes defined in Article 239 of the Turkish Criminal Code (TCK) No: 5237 is of great importance. In this work, the crime of "Disclosure of Information and/or Documents that are Commercial Secrets, Banking Secrets and/or Customer Secrets." is examined, and sections of the legislation that were either deemed accurate or deficient by the author are addressed. However, prior to the examination of the crime defined in Article 239 of the TCK, underlying legal principles of the legislation, development of the related concepts and the needs that lead to its inaction are examined in the first section of this work. In the first section of the work, the definition of the concept of "Secret" and the conditions under which information may be regarded as secret are explained in the form of subsections. Following the legal and etymological definitions of the concept of the word "secret", definitions for types of information which are considered secrets in the legal terminology. In this context, it has been attempted to first draw a frame for the concepts of "Commercial Secret", "Banking Secret" and "Customer Secret", which are present in the definition of the crime that is the subject of this work, by providing definitions and examples present in other doctrinal works and other legal texts. Following this, concepts of State Secrets, Professional Secrets, Work Secrets, Industrial Secrets, etc. –which are considered secrets by the Legal system- are touched upon. After the explanation of the concept of secrets and primary types of secrets, the historical processes which has led to the protection of secrets and the legal basis for such protection is examined. Under the subject of The Historical Basis of the Protection of Secrets, the first examples of such protections were investigated. It was discovered that such legal provisions were present as early as the Hammurabi's Code. However, in the first ages, it has been seen that the approaches toward the protection of professional secrets were adopted, and similar principles were discovered in the Roman Law. Later, first examples of legal provisions for the protection of secrets were looked for under the subject of Continental European Law, leading to the discovery of such provisions within the criminal codes of countries such as France, Belgium, Italy and Switzerland forbidding the disclosure of Professional secrets. In Anglo-Saxon countries, in which the Common Law is present, it has been seen that court decisions regarding the protection of Commercial Secrets were present. Such decisions were also provided as examples. Upon investigating the historical process of the protection of secrets, it has been found that first legal punishment attributed to the disclosure of secrets was found in the provisions of the Imperial Criminal Code, dated 1858 (Hijri: 1274). Protection for Banking Secrets was also seen in the first legislation related to the regulation of Banking of the Republic. After the examination of the Historical foundation of the protection of secrets, the legal foundations thereof were investigated, and it was seen that many points of view were present in the doctrine, basing the protection of different types of secrets on theories such as Personal rights, Property rights, Contracts, and Tort (Unfair Competition). In this context, connections between the Commercial, Banking and Customer secrets and such theories were investigated. It is thus concluded that attribution of the entire concept of the protection of secrets of all types to the one single theory would be inaccurate, since many different types of secrets are based on multiple legal foundations. The type of secret defined as a "Customer Secret", which is defined under the umbrella of Commercial and Banking secrets in the doctrines of many countries, and is thus not considered to be its own unique type of secret, is deemed to be closely related to the Theory of Personal Rights, since most customers of the relevant companies and banks are indeed real persons, and protection of the secrets thereof are indeed protecting personal rights. The Theory of Property Rights, although mostly related to the protection of Commercial Secrets, is under much criticism. Since the Commercial Secret refers to the information and documents that are outside the field of Intellectual and Industrial Property Rights, it is our opinion that the Property Rights theory is indeed inaccurate for the explanation of the Protection of commercial secrets. The Contract Theory is lacking, although with one of its sides explains the protection of Commercial, Banking and Customer secrets. Owing to the mutualistic nature of Contract Law, it is evident that the acceptance of this theory in its entirety would not allow the protection of the secrets belonging to those who are not parties to any such agreement. Lastly, the Theory of Unfair Competition, considered the most accurate of theories related to the protection of secrets – Commercial Secrets in particular- is also the legal basis that is accepted by our Legal System. After the investigation of the concept of Secrets, the Primary types of Secrets, the Legal and the historical basis of the protection of secrets, the provisions present in the Supra-national law that aim to protect secrets are examined. The author then examines, under the subject of national legislation, both civil and criminal legislation that serve to protect the Commercial, Banking and customer secrets in the legal systems of countries such as Germany, Switzerland, France, United Kingdom and the United States of America. Following this, legislation towards the protection of secrets was researched, and it has been concluded that the protection of secrets is indeed dependent on certain provisions of the Constitution. Parallels are drawn between these provisions and different types of secrets. Later on, provisions that serve to protect secrets were identified within various Codes, these provisions and their respective codes were investigated under separate topics, and legal precautions for the protection of secrets that are present in our current effective legislation were outlined and explained. Under the last topic of the first section of this work, supranational provisions and legislation around the protection of secrets were researched Again focusing on the types of secret which are the subject of this work, various supranational sources are cited that either directly or indirectly relate to these types of secrets, and form the basis of their protection. In the second section of this work, the crime type that is the subject of it was looked for in the Turkish Criminal Code (TCK) No: 765. However, the crime type present on Article 239 of the TCK No: 5237 was not present in the former TCK. In the TCK No: 765, the disclosure of the professional secrets was specified to be a crime under the Article 198, similar to the Continental European Legal Systems, which were previously examined for the legal and historical bases of the protection of secrets. Once again in the former TCK, the crime type defined in Article 364, "Disclosure of Information acquired as per the profession, Duty, or title and that are related to scientific achievements, inventions or Industrial processes" is found to be similar to the crime type present in the Article 239 of the TCK No: 5237. Paragraph 2 of the Article 239 of the TCK No: 5237 states that the provisions of the previous paragraph apply to the disclosure of Information related to the Scientific discoveries and inventions, thus showing that the Article 239 is indeed the counterpart of the crime type present in Article 364 of the TCK No: 765. After explaining the crime types present in the TCK No:765 that may be the counterpart of the Crime " Disclosure of Information and / or Documents that are Commercial Secrets, Banking Secrets and/or Customer Secrets that are Commercial Secrets, Banking Secrets and / or Customer Secrets", final explanations regarding the Crime Type present on Article 239 are provided. The explanations regarding the crime type present in Article 239 of the TCK, start with the section "Crimes related to Economy, Trade, and Industry", within which Article 239 is found. The crime types categorized as Economic Crimes in the doctrine are examined and their respective legal and historical bases are explained. Under a separate topic, the legal benefits that are being protected by the crime type "Disclosure of Information and/or Documents that are Commercial Secrets, Banking Secrets and/or Customer Secrets that are Commercial Secrets, Banking Secrets and/or Customer Secrets" are investigated, followed by an explanation of the elements of this crime. The elements of the crime type present in Article 239 of the TCK No: 5237, the Moral Element, Material Element, Legal Element and the Element of Illegality are all investigated under their respective subtopics and explained in detail. To this end, the legal definition and reasoning of the crime type is explained under the Legal Element, whereas the material subjects (perpetrator, victim, action and result) are explained under the Material Elements. Under the topic, Element of Illegality, legally defined circumstances of lawfulness that may be significant as per the Crime type, defined in Article 239, -such as the Lawful Order, exercise of a Right and the Consent of the interested party- are explained under separate topics. After the explanation of elements of the Crime, aggravating and mitigating circumstances defined in the paragraph 3 of Article 239 are explained. Since this paragraph has garnered considerable criticism from the doctrine, the points of these criticisms that were deemed both accurate and inaccurate by the author were touched upon. Following this, special forms of the Crime, namely the Attempt, Participation and Aggregation, are explained under their own sub-topics. At the finalization of the examination of the Crime type defined in Article 239 of the TCK No: 5237, the punishment of the crime, significant procedural provisions and limitations are explained. Under the third and last topic of Section 2 of this work, is the comparative examination Crime types, which in some ways are similar to the crime type that is the subject of this work.