What can I do to protect my confidential information?

Whilst there are various IP rights covering various IP (think trade marks, copyright, design rights), not everything fits squarely into these boxes.

Whilst IP rights cannot protect an idea or a concept per se, they can protect the expression of the idea. So where does confidential information fall within the IP rights framework?

Of course, confidential information can be an extremely valuable asset, and as such, businesses will understandably want to protect it. In the UK, this includes the law of confidence, trade secrets and contractual mechanisms such as NDAs.

The law of confidence

Information may be protected as confidential if it meets the following criteria:

1. The information must have the necessary ‘quality of confidence’ (i.e., it must not be public knowledge); and
2. The information must have been imparted in circumstances importing an obligation of confidence (i.e., in circumstances where there is a reasonable expectation that the information be kept confidential).

For a breach of confidence, there must be unauthorised use of the confidential information that causes detriment to the party disclosing it.

No registration is required for information to be protected by the law of confidence.

Trade secrets

A trade secrets is a form of confidential information that:

1. is secret in the sense that it is not generally known or readily accessible;
2. has commercial value due to the fact that it is secret; and
3. has been subject to reasonable steps in order to keep it a secret.

Think: Coca-Cola recipe.

Use or disclosure of a trade secret will be unlawful if it constitutes a breach of confidence.

As with confidential information, no registration is required for something to be considered a trade secret.

NDAs (Non-Disclosure Agreements)

NDAs are a type of contract that are used to protect confidential information. NDAs should always be put in place where confidential information is being shared and they should be drafted carefully to ensure specificity, clarity and compliance with legal requirements.

Practical tips

• Consider implementing NDAs and/or including clauses surrounding confidentiality in any relevant agreements.
• Implement training to ensure employees and any parties you work with understand their confidentiality obligations.
• Use methods to maintain confidentiality, such as restricting access and adding security measures to sensitive information.

If you would like specific advice please do not hesitate to contact us.