All You Need to Know about Confidentiality

All you need to know about Confidentiality Leeds Inventors Club, 14 June 2006 Jane Lambert Barrister

The Principle
If a person ( “a confidante” ) obtains commercially or personally sensitive information that is secret or at least not generally known in confidence, the confidante may not disclose or make use of that information without the consent of the person confiding that information ( “the confider” ) or other lawful excuse.

Topics to be considered
Practical applications of that principle
Enforcement
What is meant by “confidential information”
How an obligation of confidence arises
Drafting confidentiality agreements

Practical applications of that principle
Some inventions are protected by confidentiality and not patents all the time they are on the market
Other inventions may be protected by confidentiality until an application is made for a patent for the invention
Other commercial secrets such as customer lists and prices may be protected by confidentiality
So, too, are many non-commercial secrets such as medical history or celebrities’ private lives.

Related Concepts
Database Rights: The Copyright and Rights in Databases Regulations 1997 protect investment in obtaining, verifying and presenting data
Data Protection: holding and processing of personal data are regulating by Data Protection Act 1998
Human Rights: Art 8 ECHR confers a right to respect for private and family life, home and correspondence.

Circumstances where the Obligation arises
Employment
Negotiating licence, joint venture or other business agreements
Licence, franchise and other commercial agreements
Taking advice from a lawyer, patent agent, clinician or other professional

Enforcement
Complaint to the confidante’s professional body if he or she is subject to a professional duty of confidence
Otherwise, claim for injunction or damages in the civil courts

What must be proved
Information was and is confidential (i.e . commercially or personally sensitive, secret such that disclosure or use would injure confider or benefit user)
It was disclosed expressly in confidence or in circumstances giving rise to an obligation of confidence
Loss or damage has been suffered or is imminent
There is no lawful excuse for use or disclosure

Civil Proceedings
Claims should be issued out of London, Leeds, Manchester, Liverpool, Newcastle, Birmingham, Bristol or Cardiff only.
Proceedings should be brought as soon as possible, particularly if interim injunctions are needed.
Costs can run into tens of thousands so IP insurance should be considered

What is Confidential Information?
Secret: not in the public domain or at least not generally known
Sensitive: information the use or disclosure of which would benefit a competitor and/or injure the confider
Can include compilations or arrangements of published materials
Lasts only for so long as information remains secret or not generally known

How does an Obligation of Confidence arise?
Express acknowledgement of confidentiality by confidante
Circumstances are such that it is or should be obvious that the information is confidential
Confidante is under a professional obligation of confidence (patent agent, lawyer, doctor, minister of religion)

Designing Confidentiality Agreements
No such thing as a “one size fits all agreement”
Agreement should specify the information, media in which it is contained, occasion, purpose, permitted use and return of media
Acknowledgement of confidentiality and promise to abide by agreement

Limits to Confidentiality
Information enters the public domain through reverse engineering, technical advances etc.
A higher public interest (such as prevention, detection or suppression of crime) requires disclosure or use of confidential information

Confidentiality Agreements not enough
Index all documents or other media containing confidential information
Keep all media under lock and key
Educate staff on confidentiality
Record and track all disclosures
Monitor all use and enforce undertakings

Any Questions Jane Lambert NIPC The Media Centre 7 Northumberland Street Huddersfield HD1 1RL Tel 0870 990 5081 www.nipclaw.com

All You Need to Know about Confidentiality

by Jane Lambert on Jul 20, 2008

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All You Need to Know about Confidentiality — Presentation Transcript