Competitive intelligence in the Premier League business

[Ющук Евгений Леонидович]

Continuing the theme-interpretation of "industrial espionage"
Industrial espionage

From Wikipedia, the free encyclopedia


Industrial espionage is a form of unfair competition in which the illegal receipt, use, disclosure of information constituting a commercial, official or other secret protected by law is carried out with the aim of obtaining advantages in carrying out entrepreneurial activities, as well as obtaining material benefits.
The main purpose of industrial espionage is to save time and money that is needed to catch up with a leading competitor or to prevent the competitor from lagging in the future if he has developed or is developing a new promising technology, as well as to enter new markets for the enterprise.
This is also true of interstate competition, where issues of national security are added to issues of economic competitiveness.
The main difference between industrial espionage and competitive intelligence is that industrial espionage violates the law, primarily criminal law, while competitive intelligence cannot do this.
Industrial espionage remains and will remain a powerful tool of state intelligence, the purpose of which is to directly violate the laws of foreign states in the interests and on behalf of their country.
Recently, at the enterprise level, the choice has been increasingly made in favor of competitive intelligence, since the enterprise does not have the authority of state intelligence, therefore, in the event of a failure of industrial espionage, it risks being held criminally liable and also incurs reputation risks.
According to some researchers, in many cases, small and medium-sized enterprises resort to industrial espionage because they are not trained in competitive intelligence methods, and often do not even know about their existence. In a situation where the need to survive or increase competitiveness exists objectively, and the enterprise is not informed about the availability of legal methods to achieve the result, some companies embark on the path of industrial espionage. In this regard, societies of competitive intelligence professionals around the world include educational functions in their tasks.
Industrial espionage methods include:
1. Bribery of a person having access to information related to commercial, official, or other secret protected by law
2. Blackmail against the same circle of persons
3. Theft of media with information representing commercial, official, or other secret protected by law
4. Introducing an agent into a competitor’s enterprise or country with the task of gaining access to information or products that constitute the subject of commercial or other secret protected by law
5. Illegal access to commercially significant information through the use of technical means (wiretapping of telephone lines, illegal penetration into computer networks, etc.).

Probably something like this ..

This Wiki article is 90 percent written by me. More precisely, I originally wrote it, then some additions and clarifications were made to it by other people.

However, there still remains a lot of ambiguities ... Although, at least as a result of the discussion, the possibilities of the Kyrgyz Republic on certain ways and methods of obtaining information and other things were revealed ...

I don’t understand what kind of ambiguities may be. Take ALL the methods of work of state intelligence. See - which of them do not violate the Criminal Code. Apply them.
As a result, you get a legally conducted kind of work - the so-called Competitive Intelligence. This, in fact, is the only, and very simple, criterion: we are going to do something - we checked with the Criminal Code and are doing it or not doing it, depending on the result of this verification.

 

[Ющук Евгений Леонидович]

and plus another implementation: lol:

Watching how it looks in practice. Work in a company is not a crime in itself if it is not aimed at illegal access to trade secrets.

 

[Детектив-Юг]

Many letters, but useful for discussing this topic.

Article 139. Official and commercial secret

1. Information constitutes an official or commercial secret in the event that the information has actual or potential commercial value due to its unknownness to third parties, it is not legally accessible and the information holder takes measures to protect its confidentiality. Information that cannot constitute official or commercial secret is determined by law and other legal acts.
2. Information constituting an official or commercial secret shall be protected by the methods provided for by this Code and other laws.
Persons who illegally obtained information that constitutes official or commercial secret are required to compensate for the losses incurred. The same obligation is imposed on employees who divulged official or commercial secrets contrary to the employment contract, including the contract, and to contractors who did so contrary to the civil law contract.

Comments on Article 139 (Civil Code) of the Russian Federation Official and Commercial Secret

1. Comment. the article provides for the protection of the rights of the holder of information, for the determination of which the broad concept of "information" is applied, which are not subject to the protection of the norms of patent, copyright, or other special legislation. The rules of the article also apply to protectable solutions (inventions, utility models, etc.) that are not patented by the copyright holder for any, usually economic, reasons.
The Fundamentals of Civil Protection introduced protection of technical, organizational and commercial information, which constitutes the secrets of production ("know-how"), as a special object of civil law (Article 151). Comment the article does not disclose the content of information constituting an official or commercial secret, and does not list them. As in the Fundamentals of Civil Protection, one common feature is established that the protected information must have - "commercial value", i.e. ability to be an object of market turnover. The condition for the provision of protection is the adoption by the copyright holder of all necessary measures to ensure its confidentiality. Subject to these requirements, the rules of the article therefore cover any knowledge, including the practical experience of specialists, applied not only in production, but also in other areas of economic activity: trade, marketing, management, and other management services. In foreign economic and legal literature, all this information is indicated by various terms: "trade secrets", "production secrets", "know-how", which in the aspect of legal categories are perceived as synonyms.
The rules on trade secrets are also contained in a number of other Russian laws (Competition Law, Law of the Russian Federation "On Mass Media" - Vedomosti RF, 1992, N 7, Art. 300, etc.). The term of its protection is not defined. The rights to trade secrets are valid as long as the conditions for their protection are respected.
2. The recognition of certain information as confidential is the prerogative of the copyright holder. See also Presidential Decree of March 6, 1997 N 188 "On approval of the list of information of a confidential nature" (SZ RF, 1997, Article 1127). Exceptions to this general rule are established by law or other legal act. So, by the Decree of the Government of the RSFSR of December 5, 1991 N 35 "On the list of information that cannot constitute a commercial secret" (SP RF, 1992, N 1 - 2, Art. 7), these include, in particular: information contained in the constituent documents of business entities, information on established reporting standards for planning and economic activities, information necessary to verify the calculation and payment of taxes, violations of antitrust laws, etc. Enterprises and entrepreneurs are required to submit this information at the request of authorities, administrations, controlling and law enforcement agencies, other organizations that have this right in accordance with the law.
3. The legitimacy of extending the conditions for the protection of commercial secrets to official is doubtful. These are diverse concepts. The confidentiality of official information, as a rule, is not determined by its commercial value (although such information may contain information of a commercial nature). The prohibition of its disclosure is based on legislation governing certain areas of activity (see, for example, the Laws of the Russian Federation "On Federal Tax Police Bodies" - Vedomosti RF, 1993, N 29, Article 1117; "On Insurance" - Vedomosti RF, 1993, N 2, Article 56; “On Communication” - SZ RF, 1995, N 8, Article 600). Certain categories of workers in this field of activity are required to keep secret the information to which they have access in connection with the work performed (bank employees, communication workers, tax inspectors, insurance agents, doctors, etc.).
4. The consolidation of the exclusive rights of the holder of trade secrets, although constructed according to the model of industrial property protection, has its own characteristics. This protection is based on a confidentiality system, its violation entails the termination of rights. The condition for granting protection to inventions, utility models, industrial designs, on the contrary, is their publication. In addition, the actual lawful possession of information is recognized as the basis for the right to protect trade secrets subject to the conditions established by this article. At the same time, any person who independently and in good faith has become the owner of the same information has the right to dispose of it at his discretion.
five. The protected information can be used by other persons subject to two conditions: obtaining the information itself by legal means and obtaining permission from the copyright holder for such use ("non-patented license"). The relationship between the copyright holder (licensor) and the user (licensee) are drawn up in a license agreement. A typical agreement is the transfer of ready-made scientific and technical developments - technologies, designs containing unpatented technical solutions, design, etc. The rights to commercial information are included in the set of exclusive rights that make up the subject of the commercial concession agreement (see article 1027 of the Civil Code).
Elements of a license agreement may be included in other civil law agreements (for the implementation of scientific research, experimental design and technological work, work contracts, the creation of a joint stock company, etc.). In all agreements providing for the transfer of rights to use information constituting a trade secret, the user must be obliged to maintain its confidentiality. For certain types of contract, this condition is expressly provided for by the Civil Code (Articles 727, 771, 1032).
6. Protection of official and commercial secrets from unlawful encroachments may be carried out on the basis of civil, administrative or criminal law.
As the main civil - legal way of protecting comments. the article indicates compensation for losses incurred by the copyright holder. When determining their size, both real damage and lost profits can be taken into account (Article 15 of the Civil Code). Along with this, it is possible to use other methods of protection from those specified in Art. 12 GK.
A significant novelty of the Civil Code is the introduction of property liability of a person to his employer for the disclosure of official or commercial secrets, which implies the need to include appropriate conditions in the labor agreement. Prior to the adoption of the Civil Code, civil law norms on property liability could not be applied in similar cases, since the employee who divulged information and thereby caused damage to the employer was connected with it by labor relations that fell under the scope of labor law. At the same time, sanctions for violation of official secrets are also established by the norms of laws on the relevant types of activities.
The rules of administrative law are applied if the rights of the holder of commercial secrets are violated by officials of government bodies (tax, regulatory, law enforcement, etc.) who have access to such information in cases established by law. For example, in accordance with Art. 25 of the Competition Act for the disclosure of information constituting a trade secret, officials of the federal antimonopoly body (territorial body) bear administrative responsibility in the form of a warning or a fine of up to 80 minimum wages, unless these acts entail other liability provided for by applicable law.
The Criminal Code has established criminal liability for the collection of information constituting a commercial or banking secret by means of theft of documents, bribery or threats, as well as other illegal means for the purpose of disclosure or illegal use of this information, as well as for their disclosure or illegal use, committed from personal or other personal interest and causing major damage to the copyright holder (Article 183, Chapter 22 "Crimes in the field of economic activity").

 

[Детектив-Юг]

Article 183. Illegal receipt and disclosure of information constituting a commercial, tax or bank secret

1. The collection of information constituting a commercial, tax or banking secret by means of theft of documents, bribery or threats, as well as by other illegal means -
shall be punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the convict's wages or other income for a period of one to six months, or by correctional labor for a term of up to one year, or imprisonment for a term of up to two years.
2. Unlawful disclosure or use of information constituting a commercial, tax or banking secret, without the consent of its owner by a person to whom she was entrusted or became known through service or work, -
shall be punishable by a fine in the amount of up to one hundred twenty thousand rubles or in the amount of the convict's salary or other income for a period of up to one year, with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years, or correctional labor for a term of up to two years, or deprivation freedom for up to three years.
3. The same acts that caused major damage or committed out of selfish interest, -
shall be punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the convict's salary or other income for a period of up to eighteen months with deprivation of the right to occupy certain positions or engage in certain activities for a term of up to three years or imprisonment for a term of up to five years.
4. The acts provided for by parts two or three of this article, entailing grave consequences, shall -
the applicable sentence is deprivation of liberty for a term not exceeding ten years.

Commentary on Article 183

1. Information constituting commercial or banking secrets is one of the objects of civil rights protected by law. Information constitutes commercial or banking secrecy in the event that the information has actual or potential commercial value due to its unknownness to third parties, it is not legally accessible and the information holder takes measures to protect its confidentiality (Article 139 of the Civil Code of the Russian Federation) . The decision on the availability of actual or potential commercial value of information, the content and amount of relevant information is determined by the entrepreneur independently at his discretion. The trade secret may be information on production technology, the implementation of inventions, plans for the development and change of production, business partners, contracts, etc.

2. Article 26 of the Federal Law "On Amendments and Additions to the Law of the RSFSR" On Banks and Banking Activities in the RSFSR "of 1996 (SZ RF, 1996, N 6, Art. 492) establishes that banking secrecy is information about operations on accounts and deposits of bank customers and its correspondents According to the law, all banks guarantee their clients deposit secrecy.

3. Law and other legal acts shall determine information that cannot constitute commercial or banking secrets. Such information may not include constituent documents, documents giving the right to engage in entrepreneurial activity, information necessary to verify the correctness of the calculation and payment of taxes and other obligatory payments, and other information contained in the list established by the Government of December 5, 1991. N 35 (SP of the Russian Federation, 1992, N 1 - 2, Art. 7). Decree of the President of the Russian Federation of May 23, 1994 "On the implementation of comprehensive measures for the timely and full payment of taxes and other obligatory payments to the budget" (SZ RF, 1994, N 5, Article 396) obliged banks and credit institutions to inform tax authorities about transactions by individuals in the amount equivalent to 10 thousand dollars and more. According to the Decree of the President of the Russian Federation of June 14, 1994 "On urgent measures to protect the population from banditry and other manifestations of organized crime" (SZ RF, 1994, N 8, Art. 804), banking and commercial secrets are not an obstacle to getting authorized bodies information and documents on financial and economic activities, deposits and operations on accounts of individuals and legal entities involved in gang attacks and other serious crimes committed by organized criminal groups.

4. The law defines the circle of organizations and persons that are authorized to formally request and receive information constituting a commercial or banking secret. These include the courts of general jurisdiction, the arbitration courts, the prosecution, investigation and inquiry. These bodies include the State Tax Service, tax police, currency control authorities, audit organizations, notaries, federal (territorial) antitrust authorities.

5. Article 182 of this Code provides for two elements of a crime: the collection of information constituting a commercial or banking secret, and the disclosure or use of such information without the consent of the owner. The collection of this information (part 1 of article 182) is a formal composition, i.e., for the occurrence of criminal liability, the very fact of collecting information constituting a commercial or banking secret is sufficient, regardless of the occurrence or non-occurrence of harmful consequences. Criminal liability for the disclosure or use of such information without the consent of the owner (part 2 of article 182) occurs in the event of the specified actions causing major damage. The subjects of this crime are persons with relevant information in connection with official or professional activities.

6. The form of guilt for both crimes is intent. For the composition of the collection of this information, it is necessary to have the purpose indicated in the disposition of part 1 of the commented article - its disclosure or illegal use. If you disclose or use this information, you must have a selfish or other personal interest.

 

[Ющук Евгений Леонидович]

Many letters, but useful for discussing this topic.
Article 139. Official and commercial secret

Well, that’s right - that’s why we said here that if information does not belong to a category that cannot be protected by the introduction of a trade secret, then the owner of the information can (but does not have to) protect it. If he takes the whole range of measures to protect his secret and ensures that it is not in a place where you can get it without breaking the law, he is protected.

Accordingly, if one who intends to gain access to information does not violate the law when it is received, he will not gain access to protected information. But if the information protected by all the rules is in an unprotected place (for example, falls out of a folder in a trolleybus or gets out of a mistress, or is eavesdropped in a theater, etc.) - then its receipt will cease to be fraught with illegal methods and then the state will not will provide protection to the owner of this, as it were, not quite a secret.

This is written here in these two important conditions that make information secret after the introduction of CT:
there is no free legal access to it and the information owner takes measures to protect its confidentiality

 

[Ющук Евгений Леонидович]

Legal access to protected information is described by Krylov. In the fable

 

[Детектив-Юг]

As a result, we get the following:

The concepts of collecting and disseminating information are well known in criminal law and are usually interpreted quite widely. Thus, the collection of information can be carried out in any way: secretly, openly, using deception or violence, etc. It can be expressed in the abduction, acquisition, copying of documents or other tangible media of confidential information, in eavesdropping, peeping, in the conduct of photo, video or film shooting, in a survey of knowledgeable persons, etc.

It is only about the illegal collection and dissemination of information. The illegality of these actions is determined by:
firstly, the lack of consent on the part of the victim;
secondly, by their commission by a person not authorized to collect confidential information;
thirdly, by using in the collection of information the means and methods prohibited by law, for example, by violating the secrecy of correspondence, telephone conversations, mail, telegraph or other messages (Article 138 of the Criminal Code) or by violating the inviolability of the home (Article 139 of the Criminal Code). It should also be considered illegal to obtain confidential information using violence, deceit, theft of official documents, bribery to officials, etc.

The subjective side of this crime is characterized by direct intent. An element of the subjective side is the motive: selfish or other personal interest. Selfish interest is expressed in the desire to acquire material (property) benefit at the expense of the victim or in the form of remuneration from a third party. Another personal interest may be the desire to discredit a competitor, pursue a career, avenge something, demonstrate superiority or draw attention to oneself.

Responsibility lies with any physical sane person who has reached 16 years of age.

 

[Ющук Евгений Леонидович]

As a result, we get the following:

The concepts of collecting and disseminating information are well known in criminal law and are usually interpreted quite widely. Thus, the collection of information can be carried out in any way: secretly, openly, using deception or violence, etc. It can be expressed in the abduction, acquisition, copying of documents or other tangible media of confidential information, in eavesdropping, peeping, in the conduct of photo, video or film shooting, in a survey of knowledgeable persons, etc.

It is only about the illegal collection and dissemination of information. The illegality of these actions is determined by:
firstly, the lack of consent on the part of the victim;
secondly, by their commission by a person not authorized to collect confidential information;
thirdly, by using in the collection of information the means and methods prohibited by law, for example, by violating the secrecy of correspondence, telephone conversations, mail, telegraph or other messages (Article 138 of the Criminal Code) or by violating the inviolability of the home (Article 139 of the Criminal Code). It should also be considered illegal to obtain confidential information using violence, deceit, theft of official documents, bribery to officials, etc.

The subjective side of this crime is characterized by direct intent. An element of the subjective side is the motive: selfish or other personal interest. Selfish interest is expressed in the desire to acquire material (property) benefit at the expense of the victim or in the form of remuneration from a third party. Another personal interest may be the desire to discredit a competitor, pursue a career, avenge something, demonstrate superiority or draw attention to oneself.

Responsibility lies with any physical sane person who has reached 16 years of age.

Mmm ... I would only clarify that you quoted a comment on a specific article 137 of the Criminal Code of the Russian Federation "Violation of privacy".
In criminal law, as far as I know, the application of law by analogy is not allowed, therefore, although this is not an article of the Criminal Code, it is just a commentary on it (i.e., the private opinion of the author of the commentary), but this clarification is not unimportant.

 

[Детективное агентство. Мангуст. Уфа.]

Gentlemen, experts in competitive intelligence! Allow me to voice the opinion of a simple private detective who does not have any special legal education or education related to competitive intelligence. many clever words have been said here. But please answer a few simple questions.
1. The client (customer) is not obliged to report to the specialist of the Kyrgyz Republic, a private detective, for which he needs specific information. That is his right, isn't it? then why "should he walk in the forest?" If a special or private detective so constantly raises a question, then he will eventually be left without customers! Or isn’t it?
2. Specialist in the Kyrgyz Republic received the task of "digging up" information for a particular company. By legal methods (via the Internet, by appropriate official requests) he fails to do this. Then he refuses to complete the task? If so, then the customer will go to the one who will solve his assigned task. Which means that he lost a client. Is not it so?
PS They say that there is no law on the Kyrgyz Republic. But there is a Law on private detective and security activities, according to which I, a private detective, can actually do nothing but interview citizens and observe at the entrance with a pencil in my hand. Do you think that over time in our country the law on the Kyrgyz Republic will be better, more advanced?

 

[Ющук Евгений Леонидович]

1. The client (customer) is not obliged to report to the specialist of the Kyrgyz Republic, a private detective, for which he needs specific information. That is his right, isn't it? then why "should he walk in the forest?"

Is not obliged to. The freedom of contract generally provides that the parties are equal and act without coercion. There are contracts that are binding, but this is clearly not the case.
At the same time, if the specialist does not know why the customer needs what he needs to bring, then, on the one hand, he will not be able to find the optimal solution. There are a lot of stories when the customer believes that he needs something, but in fact he needs something else. Who does not know how to explain this - he probably works as an errand boy. I have not tried, so I can not say from my experience. I - explain. They understand me.

But there is another side. On this other side, the performer risks that he will either bring the wrong thing or get into an unpleasant story. For example, high treason, which has already been mentioned here. Well, or something else joyless.

Therefore, of course, the customer is not required to tell. A specialist of the Kyrgyz Republic is not obliged to work with him.

If a special or private detective so constantly raises a question, then he will eventually be left without customers! Or isn’t it?

I can’t say anything about the detective. I can only personally to myself. I refuse about 80 percent of requests for one reason or another. But I do not suffer from a lack of interesting and complex work.
Well, of course, you can decide for yourself what you do and how.

2. Specialist in the Kyrgyz Republic received the task of "digging up" information for a particular company. By legal methods (via the Internet, by appropriate official requests) he fails to do this. Then he refuses to complete the task?

Yes.

If so, then the customer will go to the one who will solve his assigned task. Which means that he lost a client. Is not it so?

Yes, probably. Have you tried trading heroin? They say it’s profitable. The truth is illegal, but you, as I understand it, are not concerned with the legitimacy of the business, but that the customers are not lost? I understand you correctly?

PS They say that there is no law on the Kyrgyz Republic. But there is a Law on private detective and security activities, according to which I, a private detective, can actually do nothing but interview citizens and observe at the entrance with a pencil in my hand. Do you think that over time in our country the law on the Kyrgyz Republic will be better, more advanced?

I do not think that the law on the Kyrgyz Republic will be at all. It’s not about marketing and no one seems to be suffering. This is if you are interested in my opinion.