The confidentiality agreements also referred to in the business practice of the Saxon countries as NDA are contracts in which the parties enter into a pact to keep certain information confidential.
In Portugal confidentiality agreements may be found in contracts in practically all areas of law, but are more common in commercial and corporate law, labor law, and certain contracts of an equity and mandatory nature in Civil Law. One of the areas of greatest use is entrepreneurs who are starting a startup, whose undue disclosure of the business may make it difficult or difficult to carry out the project.
Confidentiality agreements may be unilateral or bilateral, depending on whether only one of the parties protects its secrecy, for example when a company seeking investors or both qualifies certain information as secret, for example in a partnership between two companies wishing to for reasons prevent such collaboration from being known to third parties.
In this way it seems important to us to establish the Principles by which all contracts should be governed, as well as to emphasize some practical applications in labor law:
1. The first of these principles is that of the contractual freedom that characterizes the contract as a legal business in which both parties are in agreement with the legal effects produced, establishing through the negotiable declarations harmonized with each other, a common legal discipline that will have repercussions in the their legal spheres.
The contractual freedom, as the most relevant part of Private Autonomy is thus, the possibility granted by the Legal Order to each of the parties to self-regulate their relations, through an agreement binding on both. Although such freedom does not appear expressly referred to in Article 405 of the Civil Code, it is implicit in the expression “to conclude contracts other than those provided for in this code” provided for in that article and also presupposed in articles 228 et seq.
As we can see from the foregoing, the freedom of the parties is related not only to the free choice of the contractual type, but also to the possibility of establishing the content of the respective contracts. It is, however, very important to emphasize that such contractual freedom, on pain of ceasing to be, will have to be established by the agreement and agreement of the parties which, together, will define the balance of effects and, consequently, avoid situations that may be detrimental to them.
2. Concerning the second Principle to be dealt with, it is the duty of Good Faith, which according to Professor Menezes Cordeiro’s theorization (Treaty I – Part I, page 407) is classified as accessory duties of protection, information and of loyalty, to be observed during the negotiations and in the execution of the contract. There is an unequivocal manifestation of this Principle in cases of Article 762, which consists in making illegitimate the exercise of certain legal positions when it is contrary to the fundamental vectors of the System.
If we relate this Principle to the first, we conclude that the freedom to contract is also subject to restrictions imposed by Good Faith “being illegitimate when it could intolerably harm the rights of others” (Civil Code Annotated, Abílio Neto). The Principle of Good Faith “consists of a fair conduct, which imposes the parties’ actions according to the standards of diligence, honesty and loyalty that are required of man in legal commerce”, thus translating “the duty to act, according to one conduct of equality and correction which is intended to contribute to the fulfillment of the legitimate interests which the parties intend to achieve by concluding the Contract “(STJ Agreement 11/11/1997).
Still in relation to the Primacy of the Underlying Materiality, which, together with the Trusteeship of Confidence, divides the Principle of Good Faith into two essential postulates, allows us to evaluate the conduct of the parties, not only for their conformity with the legal orders, but also according to the its material consequences for the proper protection of the securities at stake, almost automatically, we conclude that the clauses in question do not comply with the valuation required by the contractual agreement nor the balance of the parties’ positions. There is therefore no material conformity of the Conduct required by this Agreement with this principle.
Thus, citing Professor Menezes Leitão, “Good faith is thus an important General Principle of Law, whose application in the Law of Obligations is carried out by imposing behavior on the parties, in order to enable the proper functioning of the bond, in terms of full advantage of the service and avoiding the occurrence of damages to the parties “.
3. In practice, it is in the area of the employment contract that confidentiality agreements have developed in the last years in order to safeguard the secrets of the company, protecting the economic value of each of these information to which each worker has access. It points out that the duty to keep the employee’s secrecy is first and foremost an obligation that results as a corollary of the duty of loyalty enshrined in Article 128 (1) (f) of the Labor Code. The duty of loyalty comprises two distinct duties, namely the duty of non-competition and the duty of confidentiality. The first translates the obligation of the worker not to negotiate, on his own or another’s behalf, in competition with the employer. The duty of confidentiality, on the other hand, imposes a duty of confidentiality on employees with regard to information concerning the employer’s organization, methods of production or business, namely: (i) technical or industrial information relating to manufacturing procedures, software, industrial designs or company-specific know-how (see Article 57 (1) (b) of the Industrial Property Code); (ii) business information, including confidential customer lists and suppliers or pricing structures; and (iii) company organizational and financial information contained in social and economic reports, contracts, activity plans or projects.
But in spite of legal consecration, in many cases it is important to reinforce and specify the information that is protected or covered by the duty in a written document, an agreement signed previously between employer and employee, and valid even after the termination of the employment contract. This is the typical structure of a labor confidentiality agreement: (i) – Object of the contract and description of the information that is considered confidential; (ii) – Exceptions to the duty of confidentiality (iii) – Liability for the parties (disciplinary sanctions and possible stipulation of a penal clause after termination of employment); (iv) – Term of the agreement and duration of the obligation of confidentiality; (v) – Applicable Law and Dispute Resolution (submission of the agreement to Portuguese law, or otherwise, and resolution of disputes through the Jurisdiction of the Common Courts or Arbitral Courts).
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