Towards a more holistic framework for trade secret protection in Türkiye: analysis of the draft law on the protection of trade secrets

Kadir Baş
LBF Partners, Istanbul
k.bas@lbfpartners.com

Büşra Karabudak
LBF Partners, Istanbul
b.karabudak@lbfpartners.com

Introduction

On 8 April 2026, the Turkish Ministry of Trade published the draft law on the protection of trade secrets for public consultation.^[1] The draft law represents an important attempt to introduce a coherent and standalone legal framework for trade secret protection, an area which has, until now, been addressed through scattered provisions across multiple statutes. The underlying objective of this reform is to achieve harmonisation with European Union (EU) Directive 2016/943,^[2] which establishes a comprehensive framework governing trade secrets and which all EU Member States have since transposed into their national law. Compliance with EU-equivalent standards on trade secret protection is essential for Turkish products to access EU market infrastructure, including databases such as the Digital Product Passport (mandated under the Ecodesign Regulation (EU 2024/1781)) and European Product Registry for Energy Labelling, both of which may relate to trade secrets. Accordingly, the enactment of the draft law will serve as a significant step towards Türkiye’s digital integration with the EU to facilitate the access of Turkish products to the EU market.

That said, the draft law departs from Directive (EU) 2016/943 in certain respects, particularly as regards the definition of key concepts and certain obligations. This article provides an overview of the draft law by focusing on its conformity with Directive (EU) 2016/943, as well as its coherence with the Turkish legal framework.

The current disparate legal instruments for the protection of trade secrets

Currently, the protection of trade secrets under Turkish law is addressed by various legal instruments, each dealing with distinct aspects of the matter. The Law on the Protection of Personal Data covers only the protection of natural persons’ personal data, leaving commercial information belonging to legal entities entirely outside its scope. A more directly relevant instrument is the Turkish Commercial Code (TCC), whose unfair competition provisions address certain forms of trade secret misappropriation. Article 55(1)(b)(2) of the TCC prohibits inducing employees or agents of other undertakings to disclose or obtain the production and trade secrets of their employers or principals, while Article 55(1)(d) of the TCC bans the unlawful disclosure of production and trade secrets. Although these provisions are broad in terms of their coverage, they remain too abstract to offer sufficient guidance as to the circumstances in which the use or disclosure of trade secrets is permitted.

Another relevant instrument is the Turkish Code of Obligations, which regulates confidentiality obligations applicable to employees. However, they are confined to the employment relationship. Furthermore, Article 239 of the Turkish Criminal Code criminalises the disclosure of commercial, banking and customer secrets, yet does not cover the unlawful acquisition of such information by third parties.

Such disparity among the legal instruments governing the acquisition, use and disclosure of trade secrets, to a certain extent, diminishes legal certainty and leaves trade secrets inadequately protected against misappropriation. Against this backdrop, the adoption of the draft law, subject to certain adjustments, has the potential to establish a more effective and coherent framework for trade secret protection.

An overview of the draft law

Key concepts: trade secret and trade secret holder

Trade secret

Article 2(1)(a) of the draft law provides a definition of the term ‘trade secret’, which is mostly in keeping with the definition provided in Article 2(1) of Directive (EU) 2016/943. Accordingly, information qualifies as a trade secret where the following three criteria are cumulatively satisfied:

• The information must not be generally known or readily accessible within the relevant sector.
• The information must derive commercial value from its confidential nature, and the holder must have a legitimate interest in maintaining that confidentiality. The condition of having a legitimate interest is not expressly provided for under Article 2(1) of Directive (EU) 2016/943, although Recital 14 thereof refers to the legitimate interest requirement.
• The holder must have taken reasonable measures to preserve its confidentiality.

Trade Secret Holder

Article 2(1)(b) of the draft law defines the term ‘trade secret holder’ as ‘any natural or legal person who lawfully owns and holds dispositive authority over a trade secret’. However, under Article 2(2) of Directive (EU) 2016/943, the term refers to any person who ‘lawfully controls’ a trade secret, which is a broader and more flexible concept, capturing both de facto control and contractual or other legitimate forms of access. The draft law’s reliance on the concept of ‘ownership’ risks creating conceptual ambiguity when applied to intangible information assets, such as trade secrets, which do not fit within the traditional property law framework. This terminological divergence from the EU Directive is likely to generate interpretive difficulties in practice. This issue should be addressed by the legislature.

Unlawful acquisition, use and disclosure of trade secrets

The draft law identifies three primary categories of unlawful conduct: (1) unlawful acquisition, (2) unlawful use and (3) unlawful disclosure. Notably, information that was lawfully acquired may nonetheless give rise to liability where it is subsequently used or disclosed without authorisation. Article 3(1) expressly permits the acquisition of trade secrets through reverse engineering of publicly available goods or services, in line with Article 3(1)(b) of Directive (EU) 2016/943. This may be welcomed, particularly by the technology and software sectors. Nonetheless, the permissibility of reverse engineering in any given case should be assessed with reference to existing patent protections and any applicable contractual restrictions.

In line with Article 5 of Directive (EU) 2016/943, Article 5 of the draft law sets out certain exceptions in which the acquisition, use or disclosure of a trade secret will not be considered unlawful. These exceptions cover the carrying out of the aforementioned acts for the purposes of (1) the disclosure of unlawful activities to protect the general public interest (whistleblowing), (2) freedom of the press and expression, (3) disclosure by workers to their representatives as part of the legitimate exercise by those representatives of their functions, provided that such disclosure was necessary for that exercise and (4) other cases of legitimate interest recognised by law.

The whistleblowing exception is particularly significant in the business context. It shields employees and third parties from trade secret liability when disclosing information for general public interest purposes, providing an important protection against the use of trade secret litigation as a tool to silence internal reporting. However, given that the criterion ‘protecting the general public interest’ lacks sufficient precision, the resulting legal uncertainty may deter individuals from disclosing unlawful activities.

Protection of trade secrets during judicial proceedings

One of the most practically significant provisions in the draft law is Article 11, which introduces procedural rules for protecting trade secrets in the course of judicial proceedings. Courts may order that (1) trade secret information contained in case files be kept under special protection, (2) attendance at the relevant hearings be restricted and (3) certain procedural rights of lawyers, other than the parties’ own counsel, be limited. The provision does not, however, permit the exclusion of the parties themselves or their own legal representatives from hearings.

This provision addresses a significant gap in the existing procedural framework. Under the Code of Civil Procedure, confidentiality orders are in principle available, but the conditions for granting them are not clearly defined. The same uncertainty applies to administrative proceedings under the Code of Administrative Procedure. In practice, this gap has meant that trade secret holders often refrain from submitting evidence favourable to their case for fear that litigation may compromise the confidential status of their trade secrets.

This concern is particularly pronounced in the field of competition law. Decisions by the Turkish Competition Board are published in redacted form to protect trade secrets. However, once those decisions are challenged before the administrative courts, the underlying confidential information risks being disclosed through judicial reasoning that is accessible to the public. Article 11(5) of the draft law seeks to mitigate this risk by requiring that court records, judgments and procedural documents containing trade secrets be redacted before being made available to third parties.

That said, certain provisions contained within Article 11 raise questions regarding their conformity with the Turkish Constitution. Article 141 of the Turkish Constitution permits closed hearings only where it is strictly required due to general morality or public security. The restrictions on hearing attendance (Article 11(2)) and on the sharing of judicial documents (Article 11(5)) may, therefore, face challenges on constitutional grounds if the draft law is enacted in its current form.

Legal remedies and criminal sanctions

Article 8 of the draft law entitles trade secret holders to seek injunctive relief against the unlawful acquisition, use or disclosure of their trade secrets. In addition, they may claim compensation for the losses suffered in accordance with Article 10 thereof. Compensation is to be determined by reference to both the losses sustained by the holder and the gains obtained by the infringer. In any event, compensation shall not be less than reasonable royalties for the use of the trade secret. Given the inherent difficulty of quantifying the value of trade secrets, expert evidence will play a central role in the assessment of damages before the Turkish courts.

Article 16 of the draft law introduces criminal sanctions that differ based on the types of acts relating to the trade secrets. Sentences range from one to five years’ imprisonment and judicial fines of up to the equivalent of 30,000 days,^[3] with the severity of the penalty increasing according to the nature of the unlawful conduct. For trade secrets acquired by virtue of one’s position or professional role, the draft law refers to Article 239 of the Turkish Criminal Code, which prescribes comparatively lower penalties (one to three years’ imprisonment and up to the equivalent of 5,000 days in fines).^[4] This creates an inconsistency, as it may result in lighter sanctions for the disclosure of commercial, banking and customer secrets that are inherently more sensitive and warrant a higher degree of protection. This discrepancy should be addressed during the legislative process of the draft law.

Obligation to disclose secrets to authorities

Article 14 of the draft law imposes an obligation on trade secret holders and those in possession of trade secrets to disclose such secrets to courts and public prosecutors’ offices upon request. In the context of financial or administrative audits, the obligation is confined to information directly related to and necessary for the audit in question. Non-compliance is subject to a sentence of one to two years’ imprisonment and a fine of up to the equivalent of 10,000 days^[5] (Article 16(e)). There is no equivalent obligation under Directive (EU) 2016/943, which expressly excludes the collection of information by public authorities in the exercise of their official functions from its scope.

This provision appears to be directed at procedural effectiveness rather than the protection of trade secrets. Given that obligations to produce information and documents before courts and authorities are already addressed under the Code of Criminal Procedure and the Code of Civil Procedure, Article 14 does not appear to introduce any substantive novelty warranting a departure from the existing procedural framework. Accordingly, the necessity of such a provision is questionable.

Conclusion

By proposing a holistic framework for the protection of trade secrets in line with Directive (EU) 2016/943, the draft law has the potential to strengthen safeguards for businesses and to advance Türkiye’s integration with the EU market. However, certain aspects of the draft law, particularly the conceptual ambiguities surrounding the definition of the trade secret holder, the constitutional tensions arising from Article 11 and the suitability of the disclosure obligation imposed under Article 14, warrant further consideration before the draft is enacted into law.