Against this background, it would be more difficult to justify the imposition of sweeping restrictions on the ability to work in the craft as a whole, as opposed to specific restrictions relating to specific technologies , which amount to a trade secret.
Weighing the Considerations: The Tests Regarding the Disqualification of Restrictions on Competition and Freedom of Occupation, and the Burdens Imposed on the Imposers of the Restrictions
- We have seen so far that the contractual restrictions on competition and occupation are badly harmed. We have also seen that the legitimate interests of the contractual limiters, to the extent that there are any, must be taken into accountTzadik Such restrictions.
And how should the conflicting considerations be balanced? The Supreme Court's response was given more than a quarter of a century ago in the judgment of the Honorable President Barak, Other Municipal Applications 6601/96 AES System Inc. v. Saar, IsrSC 55(3( 850 (2000( (hereinafter: the Saar case).
In the same case, it was held that freedom of contract will prevail when it becomes clear that the basis of the stipulation "is a legitimate interest of the employer, such as his 'proprietary' or 'quasi-proprietary' interest " (ibid., at p. 873). On the other hand, "the restriction of competition 'per se' - a 'naked' restriction that does not protect the employer's interest beyond the non-competition interest - does not generally protect the employer's 'legitimate interest'. It is contrary to the public interest, and it will be invalidated within the boundaries of 'public policy' " (ibid.).
A legitimate interest of the employer can be expressed in a legitimate need to protect his trade secrets, a list of customers, reputation, etc. This rule guides the way even today (see the discussion Other Municipality Applications 5083/13 Assessor Kfar Saba v. Barnea (published in Databases, 2016; In paragraph 30 of the opinion of the Honorable Judge, as he was then called, "Amit" (hereinafter: the Barnea case).
- But even if there are legitimate interests to limit the occupation and competition, this is not enough. There is still To ensure that the scope of the restriction is also appropriate and lawful ( Saar, at p. 874). "The test is that of reasonableness or proportionality. The employer is entitled to the protection of its "legitimate interests" to the appropriate extent. Beyond this extent, the interest ceased to be legitimate" (ibid., at p. 875). The reasonableness and proportionality of the limitations can be expressed in various components, including their demarcation in time, geographical place, or in relation to individual technologies andIndividual clients.
- In fact, the burden of establishing the legitimacy of the restrictive stipulation is on the applicant to justify it. He has the full data regarding the business interests that underlie it. He has the power to move her from a "naked" restriction Invalid - That does not come to achieve anything beyond the restriction on competition - to define a legitimate limitation, that protects legitimate interests.
Against this background, the burden is on the person claiming the existence of a trade secret that justifies consideration, to substantiate his claims. General statements are not enough. It is necessary to point out the components that give the secret of vitality and establish it. This was further described in the precedent-setting judgment in Labor Appeal 164/99 Fromer and Check Point Software Technologies Ltd. v. Redguard Ltd., PD 34 294 (1999( (hereinafter: the Check Point case). The Honorable President Adler ruled in the name of the majority opinion (in paragraph 25 of his opinion(: