Confidential Information

We’ve got a secret to tell you… if you don’t make use of a confidentiality agreement (often called an “NDA”), you will need to rely on the law of Confidential Information, which is far from ideal.

In order to bring a claim, you will need to show that the information had a necessary quality of confidence, that the idea was disclosed to the potential defendant in circumstances where an obligation of confidence can be assumed and that there has been an unauthorised use of the information. All 3 elements can be difficult to prove.

You can easily find a large selection of template confidentiality or NDA Agreements online. We always caution against using these because each situation where vital information, documents, designs or physical items are being disclosed is different. A tailored agreement, drafted by solicitors, which both you and other involved parties fully understand, is recommended, especially given what’s at stake.

Clauses in a Non-Disclosure Agreement and Possible Pitfalls

It’s easy to overlook obvious risks with an NDA – for example, you may get an investor or employee to sign the document but what actually happens if they copy your information and pass it on?

You will have redress against the party that signs the agreement but that might not be enough. Other dangers come via a lack of experience. For example, demanding a sophisticated potential investor signs up to “your standard NDA” which is template and heavily drafted in your favour, may result in the investor refusing to even meet with you.

Including a severe penalty clause is another common error. It’s easy to think that it’s a good idea to include a clause saying, for example, that any breach of the agreement by the recipient of the confidential information or data will result in millions in compensation. Such a clause would almost certainly be unenforceable under English law, which doesn’t normally allow liquidated penalty damages.

If you need experienced and cost-effective lawyers to draft or review a confidentiality agreement, we’re a sound choice. Our general expertise in IP and IT means we can often get a firm grip on the issues quickly. This allows our to provide clear advice without costing the earth.

Enforcement – Unlawful Disclosure or Theft of Data

Briffa’s intellectual property solicitors have acted for businesses to prevent the theft of data by competitors and employees alike. Often fast and decisive action is required. We are experts in preventing or tracking theft and securing effective remedies.

Sometimes action is vital to ensure your business and its competitive edge is maintained.

So get in touch with our lawyers if you need advice on anything to do with confidential information… just don’t tell anyone else.

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