The unauthorized copying of a competitor company’s confidential information prompted a debate that reached the Superior Court of Justice (STJ) and resulted in the acquittal of a former Embraer employee accused of aggravated theft. In an aticle pubished on the Migalhas portal, Rodrigo Falk Fragoso and Pedro Marcos Nunes Barbosa analyze REsp 2,209,066/SP and maintain that the mere reproduction of electronic files does not constitute subtraction—an indispensable requirement for establishing the offense under Article 155 of the Penal Code. Their evaluation builds on the understanding that copying the documents did not deprive the company of possession or availability of the information.
In addressing the case, the authors report that the former employee, after more than three decades with Embraer, copied electronic documents classified as business secrets. The investigation conducted by the company identified the conduct following her termination, after which she went to work for a competitor firm. The criminal action proceeded through various court instances and produced conflicting rulings until reaching its final judgment by the STJ.
The article highlights that the central point of controversy did not merely involve the existence of the copied files, but rather the propriety of the legal classification adopted by the prosecution. According to the authors, the analysis required examining whether there was an actual subtraction of movable property, an essential element of the criminal offense of theft, or whether the situation warranted the application of more specific provisions concerning the protection of confidential information and unfair competition.
In the text, Fragoso and Barbosa observe that Brazilian legislation already provides specific mechanisms for protecting trade secrets. Among them, they cite provisions of the Penal Code regarding the improper disclosure of confidential information, as well as provisions of the Industrial Property Law dealing with the unauthorized use or exploitation of confidential data obtained through a breach of trust or for the benefit of competitors.
The analysis also emphasizes that the essence of the dispute was focused on the information itself, rather than the medium used to store it. Based on this understanding, the authors argue that the mere duplication of digital files did not produce the result required for the offense of theft, since the owner of the content remained fully able to use and access the copied data.
In conclusion, the authors consider that the STJ’s ruling reinforces the need to align the criminal law response with the specific characteristics of informational assets. The column further notes that disputes involving corporate espionage and trade secret leaks have become increasingly frequent, even as the legal system continues to face challenges in defining sanctions proportional to the economic losses associated with such conduct.
