If a company tries to acquire new clients with the help of a former employee or former partner of a competing company, diverting them from the latter with unfair methods, we are facing an offense, regulated by article 2598 paragraph 3 of the Italian Civil Code.

What does article 2598 of the civil code say?

Art. 2598 of the Civil Code identifies three categories of acts that constitute unfair competition:

  • use of confusing names or distinctive signs: anyone who uses names or distinctive signs that can create confusion with those legitimately used by others, or slavishly imitates a competitor's products, or performs by any other means acts capable of generating confusion with a competitor's products and activity, commits acts of unfair competition;
  • dissemination of damaging news: anyone who spreads news or opinions about a competitor's products or activities with the intent to harm their reputation, or who unlawfully appropriates the merits of a competitor's products or business, commits unfair competition;
  • other means not conforming to professional correctness: anyone who uses any means not conforming to the principles of professional correctness, capable of damaging another company, commits acts of unfair competition.

The importance of customer data

Customer data represents a corporate asset of great economic value.
The use of client lists from a previous employer, to accelerate market access, constitutes unfair competition.

Even if such data were accessible to employees or collaborators during the employment relationship, they cannot be used beyond their professional knowledge.

Investigation methods

The private investigator can demonstrate commercial disloyalty through two main methods of investigation:

  • Activities of digital forensics on company devices used by the former employee, to demonstrate any possible misappropriation of confidential or secret information;
  • Surveillance, to demonstrate the unfair and systematic commercial activity of the former employee, towards the clients of the damaged company.

Legally possible actions

Those who suffer from unfair competition with customer diversion can take legal action in two ways:

  • immediate interruption: if the competition is ongoing, it is possible to request an urgent measure from the judge for the immediate interruption of the unfair activity;
  • compensation for damages: if the unfair competition activity has caused damages, it is still possible to request compensation.

However, it is necessary to demonstrate that:

  • the loss of customers was actually caused by unfair competition;
  • there was an actual drop in revenue directly connected to the diversion of customers.

Final considerations

In summary, unfair competition is a delicate issue and requires thorough analysis.

Jurisprudence has addressed this topic several times and has reiterated that proof of the existence of illegality is fundamental for legal action.

The AIRO Investigative Institute offers companies its investigative services aimed at protecting assets and resources, as well as gathering evidence to be used in cases of unfair competition perpetrated with the complicity of a former employee or partner of the Client.

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