By John Garnaut
CHINA has taken a hesitant step towards clarifying what is and is not a commercial secret, following global controversy over the Stern Hu/Rio Tinto espionage case.
And the answer appears to be that obtaining almost any information from a Chinese enterprise poses some risk.
Categories of potential secrets include management methods and business models, according to a regulation published this week by the agency that supervises central government-controlled enterprises.
A puzzling aspect of the announcement is that it was issued internally on March 25, the last day of the Stern Hu trial and before the verdict, but was not published externally until this week.
Publishing it on the day of issue may have saved Foreign Minister Stephen Smith from blasting the Chinese for having "missed a substantial opportunity" to clarify what is and is not a secret. "That leaves serious, unanswered questions and a significant lost opportunity so far as China is concerned," Mr Smith said on March 29.
The arrests and convictions of Stern Hu and three other Rio Tinto executives for receiving bribes and obtaining commercial secrets have led many companies to curtail or stop their market intelligence gathering in China.
This week's regulation by the state-owned Assets Supervision and Administration Commission says the 128 companies under its umbrella must "strengthen commercial secrets protection work".
It orders them to sort "core secrets" from "general secrets" and indicate the dates at which secrets will change into mere information.
It said commercial secrets included: ''management information like strategic plans, management methods, business models, reform and stockmarket listing, M&A and restructuring, property transactions, financial information, investment decisions and financing, production plans, purchase and sale, resource reserves, client information, bidding information and technical information like designs, programs, product specifications, production techniques, production methods, and technical know-how etc."
Antony Dapiran, a Beijing partner with law firm Freshfields Bruckhaus Deringer, said foreign companies had few reference points to guide them on how to steer clear of Chinese secrets laws.
''Generally speaking, violation of commercial secrets elsewhere in the world is not a criminal matter,'' he said.
''It is difficult to provide concrete guidelines but foreign executives need to be cautious with the information they obtain, the context in which they receive it, and how they use it. And this may change with the political winds.''
He said the Rio case might be an example of such a political change given its context of fraught iron ore deals, weakened state control over privately owned steel companies and maybe bad blood over the Rio-Chinalco deal.