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#8606 - Rights Protecting Confidential Info - Commercial and IP

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Rights protecting confidential info

Law of Confidence

What?

  • Ensure info remains confidential for as long as it has commercial value eg. By means of confidentiality agreements

  • Alternative way for clients to protect confidential info

  • Useful for: Ps prior to submission, during negotiation of sale of a business, to protect materials specifically excluded from P protection

Duty of confidence

 Easiest way to set this out is in an contract but as is an equitable duty, contract not necessary

Coco v Clark

Coco v Clark - 3 x elements

  1. claim relates to info which has the necessary quality of confidence

  2. which was communicated to D in circumstances obligating importing obligation of confidence; and

  3. the D has made unauthorised use of info to the detriment of person communicating it [unauthorised disc or use by D]

(1) quality of confidence

The info must:

  1. not already be in public domain - merely describing info as confidential doesn’t make it confidential

  2. Be clear and ascertainable - vague ideas will not have necessary quality of confidence

  3. Have commercial value - some info is assumed to be protectable by its nature. Consider:

  • the owner must believe that the disc of info would prejudice him/benefit his competitors

  • The owner must believe that the info is not already in public domain

  • Owner’s belief on those two matters must be r’able

  • Info should be judged in light of practices of particular trade

  1. not be common knowledge

  2. Not be trivial tittle tattle or useless info

(2) the info must have communicated in circs importing an obligation of confidence

  • the obli may arise by express ag or by prior notice or may be implied by law due to disc or relationship between parties. Special rules which apply to e’ees see below

  • In circs where there is no express ag, the Court applies an objective test of whether the circs of disc are such as to impose a duty. In De Maudsley v Palumbo, it was v imp that circs were merely social

  • The nature of into itself or practices of relevant trade can imply that recipient should assume discloser intends for info to remind conf. Some circs automatically imply duty of conf due to special relationship between parties

  • The most effective way to do this, obvi, is to make an actual statement to this effect or to have a confidentiality agreement

(3) there must be actual or proposed unauthorised use of the info to the detriment of the person communicating it

  • There must be actual or proposed use of into to satisfy final element. This includes disc’ing info to 3rd parties or using it for unauthorised use

  • In commercial terms, disc or use of business/technical info will often result in financial loss

  • In practice, it is now questionable whether detriment has to be proved by cl, in recent cases detriment has been taken as read

E’ees

  • Obligation of conf during e’ent - most e’ent contracts contain express obligation of conf. Even if no such cl, obli will be implied because of e’er/e’ee relationshio

  • Obli of conf: after e’ent - most e’ent contract have post e’ent res covss. In absence of one, there is nevertheless implied duty of conf preventing an ex e’ee from making unconscionable use of certain info acquired during e’ent - basically if it’s a trade secret. Factors to look @ include: nature of e’ent, nature of info, whether the e’er impressed on e’ee the confidentiality of info and whether the info claimed to be secret could easily be isolated from other info

E’ee or consultant?

  • Visiting consultant is not an e’ee and therefore always needs a specific contract imposing an obligation not to disc info

  • In absence of express provision, the owner of info will have to rpove that circs clearly implied a duty of conf

Stage 4 and 5 - Defences and Remedies

Defences

  • D will try and make out that cl has not made out its claim

  • Public interest defence

Remedies

Usual equitable - same as inf:

  • Injunction - most desirable

  • Damages

  • Account of profits

P vs secrecy

P

Secrecy

  • ...
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