Disclosure of Professional
Secrecy
Definition of professional
secret
Literally, a secret means that which
“man keeps to himself,” including
every bit of information that is
limited to a group of people. As
for professional secret, it means all
that which relates to information,
procedures and decisions which an
employee gets access to through
exercise of public office; ex officio.
Since an employee affiliates with the
institution where he works through
a work contract, which involves
among its items the condition of
preserving confidentiality of work
and maintaining secrecy, given that
Almighty Allah (Glorified and Exalted
is He) says, “O you who have
believed, full (all) covenants.” Our
upright religion, ahead of all positive
laws, urges us not to disclose
secrets, to protect the community
and the social texture.
According to another definition,
disclosure of a secret means
unveiling an occurrence described
as a secret by one who knows it ex
officio. In turn, it would constitute
no crime unless the accused has
harbored a criminal intention, even if
hehas slipped into severenegligence
or major mistake. The reason
behind criminalizing disclosure of
professional secrets lies in the law-
giver’s intention to protect the will
of the victim that some occurrences
remain secret. So, it is a form of
criminal protection of will. And like
every crime, whose legal substance
should be based on both mental
and material elements, the crime
of professional secrecy disclosure
does not differ at all. Like any other
crime too, secrecy disclosure crime
involves both mental and material
elements, in the manner that shall
be illustrated below:
The material element constitutes the
criminal behavior or “disclosure of
information” which is considered by
its owner as a secret that he cares to
conceal. Yet, given that professional
secrecy disclosure is among
behavioral crimes, the availability of
a criminal intent is not a prerequisite.
Besides, a criminal behavior in this
crime manifests in disclosure of the
secret by one, ex officio entrusted
with it, to another.
The mental element: It is insufficient
for accountability to an activity
that is considered as a crime from
the legal perspective that the
perpetrator commits a material
activity. Rather, the mental element
that may (morally) impute the crime
to him should be available to. Here,
it becomes available when he – the
doer – commits the mistake, which
could either be intentional, in case of
which it is called the ‘criminal intent,’
or unintentional, in case of which it
is called ‘unintentional error.’
The focus of the present topic is
limited to the public official who
occupies a public office, since a
public office is a responsibility and
a trust meant for the service of the
citizen and the community, and is
guided and oriented by religious,
national and patriotic values.
Besides, it cares to establish moral
principles, standards and rules that
govern the prosperities of a public
office.
The concept of public
offic i a l
Though administrative jurisprudence
and administrative law do not agree
on a specific definition of a ‘public
official,’ they agree on certain
elements that should be available
for the acquisition of such a
designation, which sum up in being
appointed by specialized public
authority, holding a permanent job,
and serving at a public facility run by
the state or any other public juristic
person. This is determined by the
High Court of Justice, which defines
a public official as a person to
which a permanent job is entrusted,
serving at a facility run by any
public juristic person. This definition
applies by corollary to employees
at institutions run by the state as
represented by its three legislative,
executive and judiciary powers. It
also applies to employees at public
administrative institutions and
legally acknowledged institutions, of
public juristic persons.
UAE legislator regulated this issue
relating to the crime of secret
information disclosure through
Federal Penal Law no. 1987/3, in
chapter six of the Federal Penal
Code. For, Article (379) stipulates
that
Punishment by detention for a period
of not less than one year and by a
fine of not less than twenty thousand
Dirhams or by either of these two
penalties, shall apply to any one who
is entrusted with a secret by virtue of
his profession, trade, position, or art
and who discloses it in cases other
than those lawfully permitted, or if
he uses such a secret for his own
private benefit or for the benefit of
another person, unless the person
concerned permits the disclosure
or use of such a secret. A penalty
of imprisonment for a period not
exceeding five years shall apply to
a culprit who is a public official or
in charge of a public service, and
has been entrusted with the secret
during, because of or one the
occasion of the performance of his
duty or service.
Besides, the staff affairs manual
of procedures and policies did not
overlook this crime, as it is stated
in Article 109 titled, “non-disclosure
of work secrets,” that “protection
of secret information relating to the
flow of work and commercial secrets
represents a vital importance for the
interest and success of the authority.
Such secret information include,
but is not limited to, the following
examples:
• Indemnities data
• Data software processing data
• Software programs and codes
• Customers lists
• Comparison between customers
• Financial data
• Labor relations strategies
• Marketing strategies
• New materials researches
• Proposed projects and offers
• Means of production owned by the
authority
•Research and development policies
and strategies.
• Scientific data
• Scientific formulae and equations
• Technological data
• Prototypes
All employees may be required to
sign a non-disclosure of secrets
undertaking as a prerequisite for their
employment in the authority. On the
other hand, employers who misuse
commercial secrets or divulge
work secrets and information are
subjected to disciplinary and legal
procedures that reaches the point of
discharge from service even if they
do not gain any material benefit from
the disclosure of such information.
We find that Article 109 conforms to
the text of the above quoted Federal
Law. So, according to what is
stated above, it becomes clear that
disclosure of secrets of a public job
is considered as one of the major
prohibitions for a public employee,
which is unanimously agreed up by
all laws and legislations, by juristic
opinions and by UAE administrative
and comparative judiciary, despite
the discrepancy in their stance
towards the content and scope of
such undertaking, and its entailed
exceptions and consequent legal
effects of breaching it.
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