Confidentiality and trade secrets
Solicitors here advise on and generate documentation in relation to the law and practicalities of confidentiality and trade secrets. Our solicitors undertake litigation of claims for injunctions and damages arising from the misuse of confidential information

Valuable assets do not always come pre-packed. Our solicitors are used to working at the margins of intangible rights, where duties of non-disclosure fade into the public interest in commercial freedom, where hard-nosed dealing borders on shabby treatment. The ability to take a realistic view of rights and obligations arising from the communication of information is a product of experience. Humphreys & Co. has the experience clients require, whether in documenting agreements or taking injunctive action.

The civil action for breach of confidence

Every business has its secrets.  These may range from technical information to customer lists.  UK law protects the wrongful use or disclosure of trade secrets by the civil law action of breach of confidence.

Elements of an action for breach of confidence
Case law has established that in order to succeed in an action for breach of confidence, the claimant must show - Coco v. Clark (1969):

• The information has the necessary quality of confidence about it.
•  The information was imparted in circumstances importing an obligation of confidence.
• The defendant has made unauthorised use of that information.

What is confidential information?

The information must be secret in the sense of not being generally known and must not be trivial. 

 
Where the material is a mixture of public and private information the court may deem it confidential if it would give a "springboard" advantage over competitors. 

Following termination of a joint venture, the defendant was prevented from marketing portable buildings  to the claimant's design even though the design had been made public through sales of the buildings and brochures - Terrapin (1960).

What circumstances give rise to an obligation of confidence?

The holder of the information can impose an obligation of confidence expressly. In the absence express agreement the duty to keep information secret may be implied from:

• The surrounding circumstances.  In Oasis (1997) a scene was arranged under strict security for a photo shoot to be used as the cover for an Oasis album. Publication of unauthorised photographs was restrained on the basis of breach of confidence – see also Douglas v. Hello (2007)
• The relationship between the parties, for example, employer and employee.     
  

When is use or disclosure unauthorised?

This is a question of fact in each case.  Innocent misuse of confidential information can still give rise to liability – Seager v. Copydex (1967).  Exceptionally the defence may be raised that disclosure is in the public interest or in furtherance of the right of freedom of expression under the Human Rights Act 1998.

Remedies for breach of confidence

An injunction prohibiting further use of the information may be obtained (even if the information is in the public domain). The claimant may also ask for damages or an account of profits, and delivery up and destruction of any property containing the information.  

Practical steps to protect confidential information

• Sign a confidentiality agreement before disclosing confidential information especially relating to prospective patents.
• Review contracts with employees and outside contractors to see they contain appropriate confidentiality clauses.
• Ensure new employees do not use trade secrets from their previous workplace.
• Audit present security arrangements.
  

	Combinations Solicitors here can supply the energy and depth in intellectual property law which companies, businesspeople and correspondent firms need in a competitive world marketplace to manage their intellectual property rights successfully, including in relation to: internet joint ventures know-how and show-how licensing and franchising litigation, arbitration, mediation media and publishing patents (licensing, transfer and litigation) passing off technology transfer trade marks unfair competition computer software confidential information copyrights database rights defamation and malicious falsehood designs (registered and unregistered) employee obligations EU treaty regulations free trade information technology music business