March 2003
Confidentiality Agreements and the Military
The issue of the use of confidentiality agreements for military purposes to prevent ex-soldiers profiting from their experiences may again, unfortunately, become topical. Below is a summary of how soldiers of the last Gulf War have challenged the use of confidentiality agreements without success.
"R" signed a confidentiality agreement restricting his right to divulge information obtained during his work as a member of patrol B20 (Bravo Two Zero) during the first Gulf War. He signed the agreement because failure to do so could result in being returned to his original army unit resulting in permanent removal from the SAS which is seen as a disciplinary punishment. R subsequently wrote a book detailing his experiences in the Gulf and entered a contract with a publisher in his homeland of New Zealand.
The Attorney General issued proceedings against him in New Zealand for breach of this agreement and aimed to injunct against publication, sales and intervene in any profits however R's defence was that he effectively entered the agreement under duress. The judge found that R had, indeed, been subjected to unlawful duress. The more recent Court of Appeal hearing disagreed and decided that although pressure was probably applied R did ultimately have a choice of whom to work for dependant on work conditions i.e. his old unit without the agreement or the SAS under restriction of a confidentiality agreement. They therefore felt that the confidentiality agreement was valid and formed a contract which R had indeed breached. An injunction against publication was refused however damages will be assessed and profit may be turned over to the Attorney General.
BRIFFA Comment:
There seems to be an element of distrust regarding the valid application and enforcement of confidentiality agreements however this case shows that infringers can be successfully pursued. Confidentiality agreements constitute a cost effective method of protecting your knowledge and demonstrates your awareness of intellectual property rights. Briffa have compiled a guide to confidentiality agreements which can be requested free from this site.