New type of criminal offence applying to IT service providers

If employees of an IT service provider disclose information, of which they have become aware during their work for a physician, a lawyer or another person subject to professional secrecy, they can be liable to prosecution in the future. This is due to the current draft law of the Federal government establishing new rules on the protection of secrets.

According to the proposed amendment of Section 203 German Criminal Code, persons bound to professional secrecy will be permitted to disclose secrets to persons, who support them in providing their professional practice. This only applies, however, if the disclosure is required for the services provided by the supporting person.

The draft law thus creates more legal certainty for the commissioning of IT service providers by persons subject to professional secrecy. However, as persons supporting their professional practice, the employees of hired IT service providers may in the future be liable to prosecution, if they disclose said secrets to third parties.

Practical tip:

The proposed law provides that persons entrusted with secrets must expressly bind persons who are supporting their professional practice to maintain confidentiality. If they don’t, the person entrusted with confidential information may also be liable to prosecution, if the supporting person discloses a secret.