DEFINITION, LEGAL NATURE, PURPOSE, SCOPE, AND ELEMENTS OF THE NON-DISCLOSURE AGREEMENT
I. Definition of the Non-Disclosure Agreement
In Turkish legal legislation, non-disclosure agreements are contracts that impose an obligation on the parties to protect confidential information belonging to each other or to third parties. Non-disclosure agreements are not specifically regulated under the section on special contractual obligations in the Turkish Code of Obligations. In other words, although these agreements are considered atypical contracts, none of their essential elements are regulated by law. Although the term "non-disclosure agreement" appears in various pieces of legislation, no formal definition has been provided in Turkish law.
II. Legal Nature of the Non-Disclosure Agreement
Although the legal nature of the non-disclosure agreement is a matter of debate in the doctrine, there are multiple opinions on the subject. One of these views is that the agreement is an innominate contract with a sui generis structure. In our opinion as well, non-disclosure agreements are innominate contracts and are of a sui generis nature.[1] This is also the predominant view in the doctrine. However, there are also arguments in the literature suggesting that such agreements may be considered as contracts of service, contracts of mandate, or, lastly, contracts of deposit.[2]
Non-disclosure agreements are legally binding documents that impose specific obligations on the parties. According to the Turkish Code of Obligations, a non-disclosure agreement falls under the category of innominate contracts, as it is not regulated under a specific title. However, in terms of legal consequences, it is binding and gives rise to obligations.
In the Turkish Code of Obligations, contracts are also classified according to the duration of their performance. From this perspective, contracts are divided into instantaneous, continuous, and periodic performance contracts. A non-disclosure agreement is a contract that creates a continuous obligation. In these types of contractual relationships, the debtor is obliged to fulfill their obligation through a continuous course of action.[3]
When examining non-disclosure agreements, one or both of the parties are obliged to continuously keep certain information confidential. Since the confidentiality of the information must be maintained continuously and without interruption, the non-disclosure agreement is a contract that establishes a continuous obligation.
A non-disclosure agreement is a bilateral agreement in which the parties agree on which information is considered confidential and mutually consent to not disclose this information to third parties. These types of agreements establish trust between the parties who have access to confidential information and create a legal framework to ensure the protection of the information.
The subject matter of the non-disclosure agreement is confidential information. The protection of this information will be possible if the parties act in accordance with the provisions of the agreement. The parties are obligated to take the necessary measures to ensure the security of the confidential information, prevent unauthorized disclosure, refrain from revealing it, and so on, within the scope of the agreement.
III. Elements of the Non-Disclosure Agreement
Although the non-disclosure agreement is a contract that, in accordance with the principle of freedom of contract, has an innominate nature and a unique structure (sui generis), certain elements must be present in the contract for it to be classified as a non-disclosure agreement. In this section of our article, we will address these elements.
A. Identification of Confidential Information
The non-disclosure agreement can arise in any legal relationship due to its nature and characteristics. Therefore, confidential information varies depending on the contract. In this context, confidential information can be defined as the information that constitutes the subject of the non-disclosure agreement, which will not be shared outside the conditions outlined in the contract. It is necessary to clarify what constitutes the confidential information under the non-disclosure agreement and identify which information is considered confidential in the contract.[4] Additionally, the items excluded from the scope of confidential information must also be specified in the agreement. By clearly defining which information will be considered confidential and which will not, clarity can be ensured.[5]
Confidential information can be any type of information; however, in practice, trade secrets are most often the subject of confidential information. Other examples of confidential information in practice, which constitute the main element of the non-disclosure agreement, can be listed as follows: business secrets, company secrets, trade secrets, professional secrets, banking secrets, customer secrets, production secrets, and know-how.
According to Yelmen, information that does not have the characteristic of confidentiality does not constitute the subject of a non-disclosure agreement. If information that lacks the confidentiality characteristic is included in the agreement by the parties, such information will not have any legal effect or consequence.[6]
The following matters are excluded from the scope of the non-disclosure agreement: information that was already known to the public at the time of disclosure or prior to it, information that becomes publicly available in the future without breaching the agreement and without attributing fault to the parties, information obtained from another person who has no confidentiality obligation, information known by the recipient before being under any confidentiality obligation, and information that is legally required to be disclosed pursuant to applicable laws, regulations, or a court ruling or administrative order.[7]
In practice, the party providing confidential information tends to want to broaden the scope of confidential information. This way, the scope of the non-disclosure agreement is expanded, and the protection of the information provided by the parties is sought to be ensured.
IV. Parties to the Non-Disclosure Agreement
In non-disclosure agreements, there are two main parties: the disclosing party and the receiving party. The disclosing party refers to the person or institution providing the confidential information, while the receiving party is the one who takes the information and is obligated to maintain its confidentiality. In non-disclosure agreements made for the benefit of a third party, the third party is the one benefiting from the protection of the confidential information. In practice, the purpose of using confidential information and the individuals with whom it can be shared are considered fundamental elements of many non-disclosure agreements. Generally, the disclosing party requests that the scope of use of the confidential information be as narrow as possible and shared with as few people as possible, while the receiving party aims to expand the scope of use and increase the number of people with whom the confidential information can be shared.
A. Disclosing Party
The fundamental element of non-disclosure agreements can be considered confidential information. The person who holds the ownership rights to the confidential information is the disclosing party. The disclosing party enters into a non-disclosure agreement with the receiving party to ensure the security of this information. However, the party disclosing the confidential information may be the actual owner of the information or an authorized individual with the right to disclose it. Additionally, the disclosing party can be an individual or multiple parties.
B. Receiving Party
Under the agreement made between the parties, the confidential information has been directed to the receiving party, the party that is disclosing the information. This party may be an individual, a legal entity, or a public institution, depending on the circumstances. The obligation not to disclose the confidential information to the public or third parties belongs to the receiving party in the non-disclosure agreement. Additionally, this obligation may vary depending on the nature of the work, and within the framework of obligations arising from another contract, the receiving party may also be under an obligation not to disclose the confidential information.
V. Types of Non-Disclosure Agreements
A. In Terms of the Number of Parties Under the Obligation Not to Disclose Confidential Information
Non-disclosure agreements are classified into three main categories based on the parties' obligations: unilateral, bilateral, and multilateral non-disclosure agreements. In unilateral non-disclosure agreements, only one party is under the confidentiality obligation, while in bilateral agreements, both parties mutually assume this obligation. Multilateral agreements are used when multiple parties undertake the responsibility of protecting the information.[8]
1. Unilateral Non-Disclosure Agreements
In unilateral non-disclosure agreements, only the receiving party is under the confidentiality obligation. The receiving party is responsible for not disclosing the information to the public or third parties. In cases where only one party shares information, a unilateral non-disclosure agreement is typically made.
2. Bilateral Non-Disclosure Agreements
In these types of agreements, both parties are under the obligation to protect each other's information. Bilateral non-disclosure agreements are established when both parties mutually undertake the responsibility of not disclosing confidential information to the public or third parties. These agreements are made when the parties share information that needs to remain confidential. In some cases, even if the information is shared unilaterally, a bilateral non-disclosure agreement may still be arranged if both parties have an interest in keeping the information confidential.[9]
3. Multilateral Non-Disclosure Agreements
Multilateral non-disclosure agreements are used in situations involving three or more parties, where at least one party provides information to the others. These agreements eliminate the time loss and potential inconsistencies that could arise from negotiating separate unilateral or bilateral agreements, by clearly establishing each party's obligation to protect confidential information. They are particularly preferred in cases of complex negotiations with multiple participants.
B. In Terms of Whether the Duration is Defined
Non-disclosure agreements can be either for a specified term or for an indefinite period. In term-based non-disclosure agreements, the confidentiality obligation lasts for a specific period, while in indefinite agreements, the confidentiality obligation continues unless stated otherwise. Indefinite non-disclosure agreements represent a continuous confidentiality obligation between the parties. These are particularly preferred for the protection of corporate information and trade secrets. Term-based non-disclosure agreements are valid for a specific period. These agreements terminate upon the completion of the project or work. Such agreements are common in project-based work or short-term collaborations. Once the term expires, the confidentiality obligation ends.
C. In Terms of Whether It Is Independent
Non-disclosure agreements are categorized into two main types based on their independence: independent non-disclosure agreements and dependent non-disclosure agreements. In independent non-disclosure agreements, the status of the agreement is not dependent on any other contract, while dependent non-disclosure agreements function as a legal component of the main contract.[10] Therefore, if the main contract to which a dependent non-disclosure agreement is linked is deemed invalid for any reason, the non-disclosure agreement also becomes invalid. If the main contract ends, the non-disclosure agreement terminates along with it.
Non-disclosure agreements are generally intended to ensure the confidentiality of information related to another contract. These agreements can be prepared as a separate document from the main contract or included within the same document. Additionally, non-disclosure agreements can be created as an addendum to the main contract. It is important to determine whether the non-disclosure agreement is independent of the main contract. Without considering the parties' declarations of intent, it is not possible to reach a definitive conclusion. Therefore, these declarations must be carefully interpreted, taking into account the parties' interests. In some cases, non-disclosure agreements are designed to protect the confidentiality of information shared during the negotiations of the main contract. Even if the main contract has not been created, the provisions of the non-disclosure agreement remain valid. In such cases, it is possible to conclude that the non-disclosure agreement is independent of the main contract.[11]
SECTION TWO
OBLIGATIONS AND VIOLATIONS ARISING FROM A NON-DISCLOSURE AGREEMENT
I. Establishment of a Non-Disclosure Agreement
There is no formal requirement prescribed by law for the establishment of a non-disclosure agreement. Therefore, the principle of freedom of form applies to its formation. While written form is generally preferred for the validity of such agreements, there is no legal obligation to use a specific form. However, if the non-disclosure agreement is executed as part of a primary contractual relationship, and that main contract is subject to a specific form requirement, then the non-disclosure agreement must also comply with that form.[12]
II. Obligations Arising from the Non-Disclosure Agreement
A. Non-Use Obligation
The non-use obligation refers to the requirement that the information must not be used for purposes other than those specified in the agreement. Through this obligation, the receiving party is permitted to use the confidential information solely for the authorized purposes and within the defined scope.
In confidentiality agreements, the primary obligation of the parties is to ensure the protection of confidential information, particularly against third parties. The parties are required to access and use the confidential information only under the conditions specified in the agreement, and within a defined timeframe and location. Clearly and precisely defining the scope of use for confidential information is extremely important, as any ambiguity may pose a risk of unauthorized or improper use. Therefore, confidentiality clauses should include precise language that clearly outlines the rights and obligations of the parties, ensuring that the confidential information is used solely within the specified scope and conditions.
B. Obligation to Protect
The obligation to protect includes taking all necessary technical and administrative measures. The security of confidential information is ensured through appropriate safeguards against potential risks such as loss of the information or its acquisition by unauthorized parties.
The parties to a confidentiality agreement also outline the necessary measures to protect the confidential information shared within the scope of the agreement. Such measures, included under the obligation to protect, may involve prohibiting the copying of confidential information, storing it in secure safes, monitoring it with cameras, and preventing unauthorized individuals from accessing areas where the confidential information is kept.[13]
C. Non-Disclosure Obligation
The receiving party's most fundamental obligation under the confidentiality agreement is the non-disclosure obligation. This duty is a negative obligation, meaning the party is prohibited from disclosing the information, and it is continuous in nature. Disclosing confidential information to third parties during the period specified in the agreement constitutes a violation of the law.
There are different opinions in the doctrine regarding the duration of the non-disclosure obligation. According to Gürbüz Usluel, even after the confidentiality agreement has ended, the obligation of the party who received the confidential information not to disclose it continues. This is because the disclosure of the confidential information by the receiving party after the agreement ends could lead to the loss of the confidentiality of the information and cause irreparable large-scale economic damage to the owner of the confidential information. Therefore, even after the confidentiality agreement has expired, the obligation of the owner of the confidential information to maintain its confidentiality remains.[14] According to other opinions, since the nature of the confidential information will be different in each case, each situation should be evaluated separately.
D. Loyalty Obligation
The existence of the loyalty obligation during the contractual relationship is self-evident.[15] Therefore, within the framework of current legal understanding, there is a duty of loyalty between the parties in every contract. With these explanations, it can be stated that in a confidentiality agreement, the party receiving the confidential information has a duty of loyalty to the owner of the confidential information arising from the contract.[16]
E. Return Obligation
Upon the termination of the confidentiality agreement, the return of all documents containing confidential information and all materials related to the subject matter to the owner of the confidential information falls within the obligations of the party to whom the confidential information was disclosed.[17] Upon termination, the party disclosing the confidential information may request the destruction or return of the confidential information. It is essential that these requests are clearly specified in the agreement and that the specified requests are promptly fulfilled.
III. Breach of Obligations in a Confidentiality Agreement and its Consequences
Violations in a confidentiality agreement arise when confidential information is disclosed without the written consent of the disclosing party. However, if the owner of the confidential information approves its disclosure or use, this does not constitute a breach of the agreement or the law.
A breach of obligations in confidentiality agreements leads to legal consequences based on the nature of the confidential information specified in the agreement. In this case, the classification of the confidential information is of great importance, and the legal course of action that can be pursued may vary depending on each specific situation.
A. Legal Consequences Arising from the Law
1. Under the Turkish Civil Code
Confidential information, when it is related to a party's personal rights, may be considered an attack on personal rights in case of a violation. In this case, the party whose rights have been violated may request the cessation of the violation, its prevention, or the elimination of its past effects. Under Article 25 of the Turkish Civil Code [18], the party whose rights have been violated has the right to file a lawsuit.
2. Under the Turkish Code of Obligations
The violation of confidential information subject to a confidentiality agreement, when considered an unlawful act, is regulated under the unfair competition provisions of the Turkish Commercial Code, particularly in terms of protecting such information. Unauthorized disclosure of confidential information also constitutes an unlawful act, and therefore, the provisions related to torts in the Turkish Code of Obligations No. 6098 may also apply. [19] In this context, the unlawful acquisition, use, or disclosure of confidential information covered by a confidentiality agreement is considered unfair competition under commercial law. Since unfair competition inherently falls under the scope of unlawful acts, the liability regarding confidential information under the confidentiality agreement can be addressed within the framework of tort liability.
One of the controversial issues in the doctrine is whether claims arising from tort and unjust enrichment can compete with each other. According to Eren, although both claims can compete, the plaintiff is required to choose and file only one of these actions. In the future, they cannot switch to the other action in place of the chosen one. [20] In our opinion, this prevailing view in the doctrine is the most equitable one.
3. Under the Turkish Commercial Code
When the confidential information in a confidentiality agreement is evaluated within the framework of the unfair competition provisions of the Turkish Commercial Code No. 6102, the lawsuits that may be filed based on such violations are listed in Article 56/1 of the TCC. These lawsuits include:
a) A determination of whether the act constitutes unfair competition,
b) Injunctive relief to prevent the unfair competition,
c) Elimination of the material situation resulting from the unfair competition, correction of false or misleading statements if made, and if unavoidable for the prevention of infringement, the destruction of tools and goods used in committing the act of unfair competition,
d) Compensation for damages and losses if there is fault,
e) Moral compensation if the conditions set forth in Article 58 of the Turkish Code of Obligations are met.[21]
In case of a breach of confidentiality obligations, the receiving party becomes liable in accordance with the compensation and penalty clauses specified in the contract. In the event of a violation, the disclosing party has the right to file a lawsuit for compensation of the damages suffered.
4. Under the Labor Law
If the information subject to a confidentiality agreement is included within the framework of the employment contract between the employee and the employer, it has legal consequences under Article 25/II-e of the Labor Law No. 4857. According to this provision, behaviors such as “the employee abusing the employer’s trust, committing theft, or disclosing the employer’s trade secrets” [22] are considered violations of the principles of honesty and loyalty. Therefore, the employer is granted the right to terminate the employment contract with the employee for just cause.
5. Under the Turkish Penal Code
In the event that the confidential information subject to a confidentiality agreement is violated by the receiving party, criminal liability may also arise. [23] The elements required for the offense to be subject to criminal liability are regulated under Article 239 of the Turkish Penal Code: “Any person who discloses or provides to unauthorized persons any commercial, banking, or customer secrets that they have become aware of due to their status, duty, profession, or occupation, shall be sentenced to imprisonment from one to three years and a judicial fine of up to five thousand days, upon complaint. The same penalty shall apply if such information or documents are disclosed or provided to unauthorized persons by individuals who have obtained them through unlawful means.” [24]
B. Consequences Arising from Breach of Contract
1. Compensation Claim Pursuant to Article 112 of the Turkish Code of Obligations
By its nature, Article 112 of the Turkish Code of Obligations applies to all types of debt relationships. It is not required for the contractual relationship in question to be one of the typical contracts explicitly listed in the law. This provision gives rise to the right to claim compensation if the debtor fails to perform the obligation or performs it improperly. Four conditions must be met for liability arising from a contractual breach [25]: the debtor’s breach of obligation -i.e., the violation of the contract-, the existence of damage, an adequate causal link between the act of breach and the damage, and fault. [26]
2. Penalty Clause
One of the legal sanctions that the parties may foresee in the event of a breach of the confidentiality obligation in a confidentiality agreement is the penalty clause. [27] The penalty clause is a specific amount of money that the parties have agreed to be paid in the event of a breach of the contract. In confidentiality agreements, the penalty clause provides deterrence against violations. The party disclosing the confidential information must prove the breach of the obligation. Once this proof is established, the party disclosing the confidential information becomes obligated to pay the penalty specified in the contract. This amount may cover part or all of the damage the breaching party is required to pay. It should also be noted that the party disclosing the confidential information does not need to prove actual damage in order to request the penalty clause.
3. Lump Sum Compensation
Another sanction that may be foreseen when the confidentiality obligation in a confidentiality agreement is violated by the receiving party is lump sum compensation. This compensation must be regulated within the content of the agreement. The party who violates the confidentiality obligation in a wrongful manner is liable to pay compensation unless they can prove they were not at fault. In order for the party holding the confidential information to claim the compensation specified in the agreement, damage must have occurred. However, the burden of proof for the damage does not rest with the holder of the confidential information. Additionally, there must be a causal link between the breach of the confidentiality agreement and the resulting damage in order for the holder of the confidential information to have the right to claim compensation. [28]
IV. The Role of Confidentiality Agreements in Turkish and Foreign Legal Systems and Differences in Application
Confidentiality agreements are regarded as an important tool for ensuring trust based on confidential information in both commercial and personal relationships, both in Turkish law and in foreign legal systems. Although confidentiality agreements are not directly regulated by statutory provisions in Turkish law, they are applied within the framework of the Turkish Code of Obligations and the Turkish Commercial Code.
Especially the unfair competition provisions in the Turkish Commercial Code contribute to the protection of confidentiality obligations in cases of unlawful disclosure or use of confidential information. Additionally, in such violations, the provisions related to torts in the Turkish Code of Obligations come into play, allowing the injured party to claim compensation in the event of a breach of the contract.
In foreign legal systems, particularly in English and American law, confidentiality agreements are subject to more detailed regulations, and there are more comprehensive legislations regarding the definition of confidential information. For example, in the United States, laws such as the Uniform Trade Secrets Act, and the Defend Trade Secrets Act [29] provide stronger protection for confidential information while offering a clear legal framework for information violations. The General Data Protection Regulation (GDPR) [30] aims to establish a standard regulation across the member states of the European Union. Thus, in European law, breaches of confidential information are not only limited to contractual liability but are also protected by regulatory legislation.
In Turkish law, breaches of confidential information are largely left to the contractual provisions based on the will of the parties. Therefore, the absence of a uniform regulation regarding the concept of confidential information leads courts to assess each case based on its unique circumstances. In foreign legal systems, the criminal sanctions and penalties foreseen for breaches of confidentiality are more clearly defined, and the burden of proof and the framework for protection have been clarified to allow the injured party to claim compensation.
While the Turkish legal system provides the general framework for confidentiality agreements, foreign legal systems enhance legal security, especially with detailed regulations concerning breaches of confidential information. In this context, supporting confidentiality agreements in Türkiye with a more detailed legal framework will strengthen legal trust both in the business world and in individual agreements.
V. CONCLUSION
Confidentiality agreements are important legal tools for ensuring information security and safeguarding trade secrets between the parties. These agreements strengthen the trust relationship between the parties by clearly outlining the obligations of the receiving party and the sanctions to be applied in case of a violation.
As a result, confidentiality agreements have become an indispensable protection tool in today's world, where information is rapidly transferred and digitalization dominates, especially in commercial and legal fields. In particular, confidentiality agreements are gaining increasing importance in the business world for maintaining a competitive advantage, ensuring the protection of technology-based innovations, and establishing trust in business partnerships. Although confidential information does not have a universally agreed-upon legal definition, it can generally be considered as the entire body of valuable information and data that must be kept confidential. Securing this information is a critical obligation in terms of protecting trade secrets and ensuring that personal data is kept within a lawful framework.
Confidentiality agreements not only ensure a secure environment for information sharing but also impose an obligation on the parties to use this information solely within the framework specified in the agreement. These agreements safeguard the parties' obligations by including various sanctions and compensation conditions to prevent violations. In the event of a breach of contract, it is crucial to clearly define the rights and obligations outlined within the confidentiality agreement, so that the party holding the information can compensate for their damage and obtain legal recourse for the disclosure of the confidential information.
In commercial activities, the protection of the confidentiality of values such as innovation, business processes, and financial information is guaranteed through these agreements, ensuring the strategic impact of confidential information in the business world. As a result, confidentiality agreements strengthen the legal and commercial environment of trust by ensuring that information is shared within a framework of responsibility, managed with restricted access, and the scope of protection is clearly defined. This, in turn, increases their importance as an indispensable element of the modern business and legal world.
[1] GÜMÜŞ, Mustafa Alper, Borçlar Hukuku Özel Hükümler, Vedat Kitapçılık, İstanbul 2012, p. 4.
[2] OKAY Sadık, Meslek Sırrını İfşa, Ankara University Faculty of Law Journal, Vol.10, Issue 1 (1953), p. 236.
[3] EREN, Fikret, Borçlar Hukuku Genel Hükümler, Yetkin Yayınları, Ankara, 2012, p. 107; Oğuzman, M. Kemal/ Öz, M. Turgut, Borçlar Hukuku Genel Hükümler, Volume-I, Vedat Kitapçılık, İstanbul, 2012, p. 12.
[4] ERDOĞAN, Mehmet Selim, Gizlilik Sözleşmesi, Master’s Thesis, Marmara University Institute of Social Sciences, İstanbul, 2021, p. 3
[5] NARİN, İbrahim Can: “Milletlerarası Özel Hukukta Gizlilik Sözleşmeleri” Master’s Thesis, Altınbaş University Graduate School of Education, Department of Private Law, İstanbul, 2023, p.9
[6] YELMEN Adem, “Bilgisayar Programlarına İlişkin Lisans Sözleşmelerindeki Gizlilik Hükümleri Hakkında Değerlendirmeler”, Dokuz Eylul University Faculty of Law Journal, Vol. 22, Issue 2 (2020), p.1005
[7] ATAY Kardelen Demet / TÜRK Hakkı Cihan, “Gizlilik Sözleşmeleri”, 2017, (http://www.mondaq.com, Access Date: 19.10.2024)
[8] ŞENBAŞ, Pınar, Bilgi Teknolojileri Dış Kaynak Alımında (Outsourcing) Kişisel Verilerin Korunması ve Gizlilik Sözleşmeleri, Master’s Thesis, İstanbul Bilgi University, Institute of Social Sciences, Master's Program in Information and Technology Law, İstanbul 2013, p. 41.
[9] ÇEBİ Uğur, Gizlilik Sözleşmesi, PhD Thesis, Galatasaray University Institute of Social Sciences, Department of Private Law, İstanbul, 2024, p. 30.
[10] EREN, Fikret, Borçlar Hukuku Genel Hükümler, Yetkin Yayınları, Ankara, 2012, p. 216.
[11] ÇEBİ, p. 35.
[12] ŞENBAŞ, p. 43.
[13] SULU Muhammed, Ticari Sırların Korunması, 3rd Edition, On İki Levha Yay., İstanbul 2020, p. 114; YÜKSEL BOZKURT, Armağan Ebru, Ticari Sırların Dijital Ortamda Korunması, Journal of the Turkish Justice Academy, 2018, pp.143-192.
[14] USLUEL Gürbüz, Türk Özel Hukukunda Özellikle Anonim Şirketlerde Ticarî Sırrın Korunması, 1st Edition, Vedat Kitapçılık, İstanbul 2009, p. 152.
[15] BİLGE Mehmet Emin, Ticari Sırların Korunması, 2nd Edition, Asil Yay., Ankara 2005, p. 97.
ATAY, Kardelen Demet / TÜRK Hakkı Cihan, “Gizlilik Sözleşmeleri,” 2017, (http://www.mondaq.com,
BİLGE, Mehmet Emin, Ticari Sırların Korunması, 2nd Edition, Asil Yay., Ankara 2005.
ÇEBİ, Uğur, Gizlilik Sözleşmesi, Unpublished PhD Thesis, Galatasaray University Institute of Social Sciences, Department of Private Law, İstanbul, 2024.
ERDOĞAN, Mehmet Selim, Gizlilik Sözleşmesi, Master’s Thesis, Marmara University Social Sciences Institute, İstanbul, 2021.
EREN, Fikret, Borçlar Hukuku Genel Hükümler, 25th Edition, Yetkin Yay., Ankara 2020.
EREN, Fikret, Borçlar Hukuku Özel Hükümler, 8th Edition, Yetkin Yay., Ankara 2020.
GÜMÜŞ, Mustafa Alper, Borçlar Hukuku Özel Hükümler, Volume II, İstanbul 2014.
USLUEL, Gürbüz, Türk Özel Hukukunda Özellikle Anonim Şirketlerde Ticarî Sırrın Korunması, 1st Edition, Vedat Kitapçılık, İstanbul 2009
NARİN, İbrahim Can: “Milletlerarası Özel Hukukta Gizlilik Sözleşmeleri” Master’s Thesis, Altınbaş University Graduate School of Education, Department of Private Law, İstanbul, 2023.
OKTAY, Sadık, Meslek Sırrını İfşa, Ankara University Faculty of Law Journal, Volume 10, Issue 1, pp. 235-245, 1953.
ŞENBAŞ, Pınar, Bilgi Teknolojileri Dış Kaynak Alımında (Outsourcing) Kişisel Verilerin Korunması ve Gizlilik Sözleşmeleri, İstanbul Bilgi University, Institute of Social Sciences, Information and Technology Law Master’s Program, Master’s Thesis, İstanbul 2013.
YELMEN, Adem, “Bilgisayar Programlarına İlişkin Lisans Sözleşmelerindeki Gizlilik Hükümleri Hakkında Değerlendirmeler,” Dokuz Eylül University Faculty of Law Journal, Vol. 22, Issue 2, 2020.
SECTION ONE
DEFINITION, LEGAL NATURE, PURPOSE, SCOPE, AND ELEMENTS OF THE NON-DISCLOSURE AGREEMENT
I. Definition of the Non-Disclosure Agreement
In Turkish legal legislation, non-disclosure agreements are contracts that impose an obligation on the parties to protect confidential information belonging to each other or to third parties. Non-disclosure agreements are not specifically regulated under the section on special contractual obligations in the Turkish Code of Obligations. In other words, although these agreements are considered atypical contracts, none of their essential elements are regulated by law. Although the term "non-disclosure agreement" appears in various pieces of legislation, no formal definition has been provided in Turkish law.
II. Legal Nature of the Non-Disclosure Agreement
Although the legal nature of the non-disclosure agreement is a matter of debate in the doctrine, there are multiple opinions on the subject. One of these views is that the agreement is an innominate contract with a sui generis structure. In our opinion as well, non-disclosure agreements are innominate contracts and are of a sui generis nature.[1] This is also the predominant view in the doctrine. However, there are also arguments in the literature suggesting that such agreements may be considered as contracts of service, contracts of mandate, or, lastly, contracts of deposit.[2]
Non-disclosure agreements are legally binding documents that impose specific obligations on the parties. According to the Turkish Code of Obligations, a non-disclosure agreement falls under the category of innominate contracts, as it is not regulated under a specific title. However, in terms of legal consequences, it is binding and gives rise to obligations.
In the Turkish Code of Obligations, contracts are also classified according to the duration of their performance. From this perspective, contracts are divided into instantaneous, continuous, and periodic performance contracts. A non-disclosure agreement is a contract that creates a continuous obligation. In these types of contractual relationships, the debtor is obliged to fulfill their obligation through a continuous course of action.[3]
When examining non-disclosure agreements, one or both of the parties are obliged to continuously keep certain information confidential. Since the confidentiality of the information must be maintained continuously and without interruption, the non-disclosure agreement is a contract that establishes a continuous obligation.
A non-disclosure agreement is a bilateral agreement in which the parties agree on which information is considered confidential and mutually consent to not disclose this information to third parties. These types of agreements establish trust between the parties who have access to confidential information and create a legal framework to ensure the protection of the information.
The subject matter of the non-disclosure agreement is confidential information. The protection of this information will be possible if the parties act in accordance with the provisions of the agreement. The parties are obligated to take the necessary measures to ensure the security of the confidential information, prevent unauthorized disclosure, refrain from revealing it, and so on, within the scope of the agreement.
III. Elements of the Non-Disclosure Agreement
Although the non-disclosure agreement is a contract that, in accordance with the principle of freedom of contract, has an innominate nature and a unique structure (sui generis), certain elements must be present in the contract for it to be classified as a non-disclosure agreement. In this section of our article, we will address these elements.
A. Identification of Confidential Information
The non-disclosure agreement can arise in any legal relationship due to its nature and characteristics. Therefore, confidential information varies depending on the contract. In this context, confidential information can be defined as the information that constitutes the subject of the non-disclosure agreement, which will not be shared outside the conditions outlined in the contract. It is necessary to clarify what constitutes the confidential information under the non-disclosure agreement and identify which information is considered confidential in the contract.[4] Additionally, the items excluded from the scope of confidential information must also be specified in the agreement. By clearly defining which information will be considered confidential and which will not, clarity can be ensured.[5]
Confidential information can be any type of information; however, in practice, trade secrets are most often the subject of confidential information. Other examples of confidential information in practice, which constitute the main element of the non-disclosure agreement, can be listed as follows: business secrets, company secrets, trade secrets, professional secrets, banking secrets, customer secrets, production secrets, and know-how.
According to Yelmen, information that does not have the characteristic of confidentiality does not constitute the subject of a non-disclosure agreement. If information that lacks the confidentiality characteristic is included in the agreement by the parties, such information will not have any legal effect or consequence.[6]
The following matters are excluded from the scope of the non-disclosure agreement: information that was already known to the public at the time of disclosure or prior to it, information that becomes publicly available in the future without breaching the agreement and without attributing fault to the parties, information obtained from another person who has no confidentiality obligation, information known by the recipient before being under any confidentiality obligation, and information that is legally required to be disclosed pursuant to applicable laws, regulations, or a court ruling or administrative order.[7]
In practice, the party providing confidential information tends to want to broaden the scope of confidential information. This way, the scope of the non-disclosure agreement is expanded, and the protection of the information provided by the parties is sought to be ensured.
IV. Parties to the Non-Disclosure Agreement
In non-disclosure agreements, there are two main parties: the disclosing party and the receiving party. The disclosing party refers to the person or institution providing the confidential information, while the receiving party is the one who takes the information and is obligated to maintain its confidentiality. In non-disclosure agreements made for the benefit of a third party, the third party is the one benefiting from the protection of the confidential information. In practice, the purpose of using confidential information and the individuals with whom it can be shared are considered fundamental elements of many non-disclosure agreements. Generally, the disclosing party requests that the scope of use of the confidential information be as narrow as possible and shared with as few people as possible, while the receiving party aims to expand the scope of use and increase the number of people with whom the confidential information can be shared.
A. Disclosing Party
The fundamental element of non-disclosure agreements can be considered confidential information. The person who holds the ownership rights to the confidential information is the disclosing party. The disclosing party enters into a non-disclosure agreement with the receiving party to ensure the security of this information. However, the party disclosing the confidential information may be the actual owner of the information or an authorized individual with the right to disclose it. Additionally, the disclosing party can be an individual or multiple parties.
B. Receiving Party
Under the agreement made between the parties, the confidential information has been directed to the receiving party, the party that is disclosing the information. This party may be an individual, a legal entity, or a public institution, depending on the circumstances. The obligation not to disclose the confidential information to the public or third parties belongs to the receiving party in the non-disclosure agreement. Additionally, this obligation may vary depending on the nature of the work, and within the framework of obligations arising from another contract, the receiving party may also be under an obligation not to disclose the confidential information.
V. Types of Non-Disclosure Agreements
A. In Terms of the Number of Parties Under the Obligation Not to Disclose Confidential Information
Non-disclosure agreements are classified into three main categories based on the parties' obligations: unilateral, bilateral, and multilateral non-disclosure agreements. In unilateral non-disclosure agreements, only one party is under the confidentiality obligation, while in bilateral agreements, both parties mutually assume this obligation. Multilateral agreements are used when multiple parties undertake the responsibility of protecting the information.[8]
1. Unilateral Non-Disclosure Agreements
In unilateral non-disclosure agreements, only the receiving party is under the confidentiality obligation. The receiving party is responsible for not disclosing the information to the public or third parties. In cases where only one party shares information, a unilateral non-disclosure agreement is typically made.
2. Bilateral Non-Disclosure Agreements
In these types of agreements, both parties are under the obligation to protect each other's information. Bilateral non-disclosure agreements are established when both parties mutually undertake the responsibility of not disclosing confidential information to the public or third parties. These agreements are made when the parties share information that needs to remain confidential. In some cases, even if the information is shared unilaterally, a bilateral non-disclosure agreement may still be arranged if both parties have an interest in keeping the information confidential.[9]
3. Multilateral Non-Disclosure Agreements
Multilateral non-disclosure agreements are used in situations involving three or more parties, where at least one party provides information to the others. These agreements eliminate the time loss and potential inconsistencies that could arise from negotiating separate unilateral or bilateral agreements, by clearly establishing each party's obligation to protect confidential information. They are particularly preferred in cases of complex negotiations with multiple participants.
B. In Terms of Whether the Duration is Defined
Non-disclosure agreements can be either for a specified term or for an indefinite period. In term-based non-disclosure agreements, the confidentiality obligation lasts for a specific period, while in indefinite agreements, the confidentiality obligation continues unless stated otherwise. Indefinite non-disclosure agreements represent a continuous confidentiality obligation between the parties. These are particularly preferred for the protection of corporate information and trade secrets. Term-based non-disclosure agreements are valid for a specific period. These agreements terminate upon the completion of the project or work. Such agreements are common in project-based work or short-term collaborations. Once the term expires, the confidentiality obligation ends.
C. In Terms of Whether It Is Independent
Non-disclosure agreements are categorized into two main types based on their independence: independent non-disclosure agreements and dependent non-disclosure agreements. In independent non-disclosure agreements, the status of the agreement is not dependent on any other contract, while dependent non-disclosure agreements function as a legal component of the main contract.[10] Therefore, if the main contract to which a dependent non-disclosure agreement is linked is deemed invalid for any reason, the non-disclosure agreement also becomes invalid. If the main contract ends, the non-disclosure agreement terminates along with it.
Non-disclosure agreements are generally intended to ensure the confidentiality of information related to another contract. These agreements can be prepared as a separate document from the main contract or included within the same document. Additionally, non-disclosure agreements can be created as an addendum to the main contract. It is important to determine whether the non-disclosure agreement is independent of the main contract. Without considering the parties' declarations of intent, it is not possible to reach a definitive conclusion. Therefore, these declarations must be carefully interpreted, taking into account the parties' interests. In some cases, non-disclosure agreements are designed to protect the confidentiality of information shared during the negotiations of the main contract. Even if the main contract has not been created, the provisions of the non-disclosure agreement remain valid. In such cases, it is possible to conclude that the non-disclosure agreement is independent of the main contract.[11]
SECTION TWO
OBLIGATIONS AND VIOLATIONS ARISING FROM A NON-DISCLOSURE AGREEMENT
I. Establishment of a Non-Disclosure Agreement
There is no formal requirement prescribed by law for the establishment of a non-disclosure agreement. Therefore, the principle of freedom of form applies to its formation. While written form is generally preferred for the validity of such agreements, there is no legal obligation to use a specific form. However, if the non-disclosure agreement is executed as part of a primary contractual relationship, and that main contract is subject to a specific form requirement, then the non-disclosure agreement must also comply with that form.[12]
II. Obligations Arising from the Non-Disclosure Agreement
A. Non-Use Obligation
The non-use obligation refers to the requirement that the information must not be used for purposes other than those specified in the agreement. Through this obligation, the receiving party is permitted to use the confidential information solely for the authorized purposes and within the defined scope.
In confidentiality agreements, the primary obligation of the parties is to ensure the protection of confidential information, particularly against third parties. The parties are required to access and use the confidential information only under the conditions specified in the agreement, and within a defined timeframe and location. Clearly and precisely defining the scope of use for confidential information is extremely important, as any ambiguity may pose a risk of unauthorized or improper use. Therefore, confidentiality clauses should include precise language that clearly outlines the rights and obligations of the parties, ensuring that the confidential information is used solely within the specified scope and conditions.
B. Obligation to Protect
The obligation to protect includes taking all necessary technical and administrative measures. The security of confidential information is ensured through appropriate safeguards against potential risks such as loss of the information or its acquisition by unauthorized parties.
The parties to a confidentiality agreement also outline the necessary measures to protect the confidential information shared within the scope of the agreement. Such measures, included under the obligation to protect, may involve prohibiting the copying of confidential information, storing it in secure safes, monitoring it with cameras, and preventing unauthorized individuals from accessing areas where the confidential information is kept.[13]
C. Non-Disclosure Obligation
The receiving party's most fundamental obligation under the confidentiality agreement is the non-disclosure obligation. This duty is a negative obligation, meaning the party is prohibited from disclosing the information, and it is continuous in nature. Disclosing confidential information to third parties during the period specified in the agreement constitutes a violation of the law.
There are different opinions in the doctrine regarding the duration of the non-disclosure obligation. According to Gürbüz Usluel, even after the confidentiality agreement has ended, the obligation of the party who received the confidential information not to disclose it continues. This is because the disclosure of the confidential information by the receiving party after the agreement ends could lead to the loss of the confidentiality of the information and cause irreparable large-scale economic damage to the owner of the confidential information. Therefore, even after the confidentiality agreement has expired, the obligation of the owner of the confidential information to maintain its confidentiality remains.[14] According to other opinions, since the nature of the confidential information will be different in each case, each situation should be evaluated separately.
D. Loyalty Obligation
The existence of the loyalty obligation during the contractual relationship is self-evident.[15] Therefore, within the framework of current legal understanding, there is a duty of loyalty between the parties in every contract. With these explanations, it can be stated that in a confidentiality agreement, the party receiving the confidential information has a duty of loyalty to the owner of the confidential information arising from the contract.[16]
E. Return Obligation
Upon the termination of the confidentiality agreement, the return of all documents containing confidential information and all materials related to the subject matter to the owner of the confidential information falls within the obligations of the party to whom the confidential information was disclosed.[17] Upon termination, the party disclosing the confidential information may request the destruction or return of the confidential information. It is essential that these requests are clearly specified in the agreement and that the specified requests are promptly fulfilled.
III. Breach of Obligations in a Confidentiality Agreement and its Consequences
Violations in a confidentiality agreement arise when confidential information is disclosed without the written consent of the disclosing party. However, if the owner of the confidential information approves its disclosure or use, this does not constitute a breach of the agreement or the law.
A breach of obligations in confidentiality agreements leads to legal consequences based on the nature of the confidential information specified in the agreement. In this case, the classification of the confidential information is of great importance, and the legal course of action that can be pursued may vary depending on each specific situation.
A. Legal Consequences Arising from the Law
1. Under the Turkish Civil Code
Confidential information, when it is related to a party's personal rights, may be considered an attack on personal rights in case of a violation. In this case, the party whose rights have been violated may request the cessation of the violation, its prevention, or the elimination of its past effects. Under Article 25 of the Turkish Civil Code [18], the party whose rights have been violated has the right to file a lawsuit.
2. Under the Turkish Code of Obligations
The violation of confidential information subject to a confidentiality agreement, when considered an unlawful act, is regulated under the unfair competition provisions of the Turkish Commercial Code, particularly in terms of protecting such information. Unauthorized disclosure of confidential information also constitutes an unlawful act, and therefore, the provisions related to torts in the Turkish Code of Obligations No. 6098 may also apply. [19] In this context, the unlawful acquisition, use, or disclosure of confidential information covered by a confidentiality agreement is considered unfair competition under commercial law. Since unfair competition inherently falls under the scope of unlawful acts, the liability regarding confidential information under the confidentiality agreement can be addressed within the framework of tort liability.
One of the controversial issues in the doctrine is whether claims arising from tort and unjust enrichment can compete with each other. According to Eren, although both claims can compete, the plaintiff is required to choose and file only one of these actions. In the future, they cannot switch to the other action in place of the chosen one. [20] In our opinion, this prevailing view in the doctrine is the most equitable one.
3. Under the Turkish Commercial Code
When the confidential information in a confidentiality agreement is evaluated within the framework of the unfair competition provisions of the Turkish Commercial Code No. 6102, the lawsuits that may be filed based on such violations are listed in Article 56/1 of the TCC. These lawsuits include:
a) A determination of whether the act constitutes unfair competition,
b) Injunctive relief to prevent the unfair competition,
c) Elimination of the material situation resulting from the unfair competition, correction of false or misleading statements if made, and if unavoidable for the prevention of infringement, the destruction of tools and goods used in committing the act of unfair competition,
d) Compensation for damages and losses if there is fault,
e) Moral compensation if the conditions set forth in Article 58 of the Turkish Code of Obligations are met.[21]
In case of a breach of confidentiality obligations, the receiving party becomes liable in accordance with the compensation and penalty clauses specified in the contract. In the event of a violation, the disclosing party has the right to file a lawsuit for compensation of the damages suffered.
4. Under the Labor Law
If the information subject to a confidentiality agreement is included within the framework of the employment contract between the employee and the employer, it has legal consequences under Article 25/II-e of the Labor Law No. 4857. According to this provision, behaviors such as “the employee abusing the employer’s trust, committing theft, or disclosing the employer’s trade secrets” [22] are considered violations of the principles of honesty and loyalty. Therefore, the employer is granted the right to terminate the employment contract with the employee for just cause.
5. Under the Turkish Penal Code
In the event that the confidential information subject to a confidentiality agreement is violated by the receiving party, criminal liability may also arise. [23] The elements required for the offense to be subject to criminal liability are regulated under Article 239 of the Turkish Penal Code: “Any person who discloses or provides to unauthorized persons any commercial, banking, or customer secrets that they have become aware of due to their status, duty, profession, or occupation, shall be sentenced to imprisonment from one to three years and a judicial fine of up to five thousand days, upon complaint. The same penalty shall apply if such information or documents are disclosed or provided to unauthorized persons by individuals who have obtained them through unlawful means.” [24]
B. Consequences Arising from Breach of Contract
1. Compensation Claim Pursuant to Article 112 of the Turkish Code of Obligations
By its nature, Article 112 of the Turkish Code of Obligations applies to all types of debt relationships. It is not required for the contractual relationship in question to be one of the typical contracts explicitly listed in the law. This provision gives rise to the right to claim compensation if the debtor fails to perform the obligation or performs it improperly. Four conditions must be met for liability arising from a contractual breach [25]: the debtor’s breach of obligation -i.e., the violation of the contract-, the existence of damage, an adequate causal link between the act of breach and the damage, and fault. [26]
2. Penalty Clause
One of the legal sanctions that the parties may foresee in the event of a breach of the confidentiality obligation in a confidentiality agreement is the penalty clause. [27] The penalty clause is a specific amount of money that the parties have agreed to be paid in the event of a breach of the contract. In confidentiality agreements, the penalty clause provides deterrence against violations. The party disclosing the confidential information must prove the breach of the obligation. Once this proof is established, the party disclosing the confidential information becomes obligated to pay the penalty specified in the contract. This amount may cover part or all of the damage the breaching party is required to pay. It should also be noted that the party disclosing the confidential information does not need to prove actual damage in order to request the penalty clause.
3. Lump Sum Compensation
Another sanction that may be foreseen when the confidentiality obligation in a confidentiality agreement is violated by the receiving party is lump sum compensation. This compensation must be regulated within the content of the agreement. The party who violates the confidentiality obligation in a wrongful manner is liable to pay compensation unless they can prove they were not at fault. In order for the party holding the confidential information to claim the compensation specified in the agreement, damage must have occurred. However, the burden of proof for the damage does not rest with the holder of the confidential information. Additionally, there must be a causal link between the breach of the confidentiality agreement and the resulting damage in order for the holder of the confidential information to have the right to claim compensation. [28]
IV. The Role of Confidentiality Agreements in Turkish and Foreign Legal Systems and Differences in Application
Confidentiality agreements are regarded as an important tool for ensuring trust based on confidential information in both commercial and personal relationships, both in Turkish law and in foreign legal systems. Although confidentiality agreements are not directly regulated by statutory provisions in Turkish law, they are applied within the framework of the Turkish Code of Obligations and the Turkish Commercial Code.
Especially the unfair competition provisions in the Turkish Commercial Code contribute to the protection of confidentiality obligations in cases of unlawful disclosure or use of confidential information. Additionally, in such violations, the provisions related to torts in the Turkish Code of Obligations come into play, allowing the injured party to claim compensation in the event of a breach of the contract.
In foreign legal systems, particularly in English and American law, confidentiality agreements are subject to more detailed regulations, and there are more comprehensive legislations regarding the definition of confidential information. For example, in the United States, laws such as the Uniform Trade Secrets Act, and the Defend Trade Secrets Act [29] provide stronger protection for confidential information while offering a clear legal framework for information violations. The General Data Protection Regulation (GDPR) [30] aims to establish a standard regulation across the member states of the European Union. Thus, in European law, breaches of confidential information are not only limited to contractual liability but are also protected by regulatory legislation.
In Turkish law, breaches of confidential information are largely left to the contractual provisions based on the will of the parties. Therefore, the absence of a uniform regulation regarding the concept of confidential information leads courts to assess each case based on its unique circumstances. In foreign legal systems, the criminal sanctions and penalties foreseen for breaches of confidentiality are more clearly defined, and the burden of proof and the framework for protection have been clarified to allow the injured party to claim compensation.
While the Turkish legal system provides the general framework for confidentiality agreements, foreign legal systems enhance legal security, especially with detailed regulations concerning breaches of confidential information. In this context, supporting confidentiality agreements in Türkiye with a more detailed legal framework will strengthen legal trust both in the business world and in individual agreements.
V. CONCLUSION
Confidentiality agreements are important legal tools for ensuring information security and safeguarding trade secrets between the parties. These agreements strengthen the trust relationship between the parties by clearly outlining the obligations of the receiving party and the sanctions to be applied in case of a violation.
As a result, confidentiality agreements have become an indispensable protection tool in today's world, where information is rapidly transferred and digitalization dominates, especially in commercial and legal fields. In particular, confidentiality agreements are gaining increasing importance in the business world for maintaining a competitive advantage, ensuring the protection of technology-based innovations, and establishing trust in business partnerships. Although confidential information does not have a universally agreed-upon legal definition, it can generally be considered as the entire body of valuable information and data that must be kept confidential. Securing this information is a critical obligation in terms of protecting trade secrets and ensuring that personal data is kept within a lawful framework.
Confidentiality agreements not only ensure a secure environment for information sharing but also impose an obligation on the parties to use this information solely within the framework specified in the agreement. These agreements safeguard the parties' obligations by including various sanctions and compensation conditions to prevent violations. In the event of a breach of contract, it is crucial to clearly define the rights and obligations outlined within the confidentiality agreement, so that the party holding the information can compensate for their damage and obtain legal recourse for the disclosure of the confidential information.
In commercial activities, the protection of the confidentiality of values such as innovation, business processes, and financial information is guaranteed through these agreements, ensuring the strategic impact of confidential information in the business world. As a result, confidentiality agreements strengthen the legal and commercial environment of trust by ensuring that information is shared within a framework of responsibility, managed with restricted access, and the scope of protection is clearly defined. This, in turn, increases their importance as an indispensable element of the modern business and legal world.
[1] GÜMÜŞ, Mustafa Alper, Borçlar Hukuku Özel Hükümler, Vedat Kitapçılık, İstanbul 2012, p. 4.
[2] OKAY Sadık, Meslek Sırrını İfşa, Ankara University Faculty of Law Journal, Vol.10, Issue 1 (1953), p. 236.
[3] EREN, Fikret, Borçlar Hukuku Genel Hükümler, Yetkin Yayınları, Ankara, 2012, p. 107; Oğuzman, M. Kemal/ Öz, M. Turgut, Borçlar Hukuku Genel Hükümler, Volume-I, Vedat Kitapçılık, İstanbul, 2012, p. 12.
[4] ERDOĞAN, Mehmet Selim, Gizlilik Sözleşmesi, Master’s Thesis, Marmara University Institute of Social Sciences, İstanbul, 2021, p. 3
[5] NARİN, İbrahim Can: “Milletlerarası Özel Hukukta Gizlilik Sözleşmeleri” Master’s Thesis, Altınbaş University Graduate School of Education, Department of Private Law, İstanbul, 2023, p.9
[6] YELMEN Adem, “Bilgisayar Programlarına İlişkin Lisans Sözleşmelerindeki Gizlilik Hükümleri Hakkında Değerlendirmeler”, Dokuz Eylul University Faculty of Law Journal, Vol. 22, Issue 2 (2020), p.1005
[7] ATAY Kardelen Demet / TÜRK Hakkı Cihan, “Gizlilik Sözleşmeleri”, 2017, (http://www.mondaq.com, Access Date: 19.10.2024)
[8] ŞENBAŞ, Pınar, Bilgi Teknolojileri Dış Kaynak Alımında (Outsourcing) Kişisel Verilerin Korunması ve Gizlilik Sözleşmeleri, Master’s Thesis, İstanbul Bilgi University, Institute of Social Sciences, Master's Program in Information and Technology Law, İstanbul 2013, p. 41.
[9] ÇEBİ Uğur, Gizlilik Sözleşmesi, PhD Thesis, Galatasaray University Institute of Social Sciences, Department of Private Law, İstanbul, 2024, p. 30.
[10] EREN, Fikret, Borçlar Hukuku Genel Hükümler, Yetkin Yayınları, Ankara, 2012, p. 216.
[11] ÇEBİ, p. 35.
[12] ŞENBAŞ, p. 43.
[13] SULU Muhammed, Ticari Sırların Korunması, 3rd Edition, On İki Levha Yay., İstanbul 2020, p. 114; YÜKSEL BOZKURT, Armağan Ebru, Ticari Sırların Dijital Ortamda Korunması, Journal of the Turkish Justice Academy, 2018, pp.143-192.
[14] USLUEL Gürbüz, Türk Özel Hukukunda Özellikle Anonim Şirketlerde Ticarî Sırrın Korunması, 1st Edition, Vedat Kitapçılık, İstanbul 2009, p. 152.
[15] BİLGE Mehmet Emin, Ticari Sırların Korunması, 2nd Edition, Asil Yay., Ankara 2005, p. 97.
ATAY, Kardelen Demet / TÜRK Hakkı Cihan, “Gizlilik Sözleşmeleri,” 2017, (http://www.mondaq.com,
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ÇEBİ, Uğur, Gizlilik Sözleşmesi, Unpublished PhD Thesis, Galatasaray University Institute of Social Sciences, Department of Private Law, İstanbul, 2024.
ERDOĞAN, Mehmet Selim, Gizlilik Sözleşmesi, Master’s Thesis, Marmara University Social Sciences Institute, İstanbul, 2021.
EREN, Fikret, Borçlar Hukuku Genel Hükümler, 25th Edition, Yetkin Yay., Ankara 2020.
EREN, Fikret, Borçlar Hukuku Özel Hükümler, 8th Edition, Yetkin Yay., Ankara 2020.
GÜMÜŞ, Mustafa Alper, Borçlar Hukuku Özel Hükümler, Volume II, İstanbul 2014.
USLUEL, Gürbüz, Türk Özel Hukukunda Özellikle Anonim Şirketlerde Ticarî Sırrın Korunması, 1st Edition, Vedat Kitapçılık, İstanbul 2009
NARİN, İbrahim Can: “Milletlerarası Özel Hukukta Gizlilik Sözleşmeleri” Master’s Thesis, Altınbaş University Graduate School of Education, Department of Private Law, İstanbul, 2023.
OKTAY, Sadık, Meslek Sırrını İfşa, Ankara University Faculty of Law Journal, Volume 10, Issue 1, pp. 235-245, 1953.
ŞENBAŞ, Pınar, Bilgi Teknolojileri Dış Kaynak Alımında (Outsourcing) Kişisel Verilerin Korunması ve Gizlilik Sözleşmeleri, İstanbul Bilgi University, Institute of Social Sciences, Information and Technology Law Master’s Program, Master’s Thesis, İstanbul 2013.
YELMEN, Adem, “Bilgisayar Programlarına İlişkin Lisans Sözleşmelerindeki Gizlilik Hükümleri Hakkında Değerlendirmeler,” Dokuz Eylül University Faculty of Law Journal, Vol. 22, Issue 2, 2020.
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