The law of confidential information

The law of confidential information is a useful tool for protecting commercially sensitive material, such as trade secrets, which cannot be fully protected by intellectual property rights. It is based around the principle that a person who has received information in confidence should not use or disclose that information without permission. The unauthorised use or disclosure of confidential information may give rise to an action for breach of confidence.

The duty of confidence arises in circumstances where an individual is privy to information that is confidential in nature, having the ‘necessary quality of confidence’ and disclosed in circumstances importing an obligation of confidence.

In order for the information to have the ‘necessary quality of confidence’, it must not be something that is public property or public knowledge. Where the information in question is similar to something already in the public domain, consideration is given to whether someone applied some skill and ingenuity in their treatment of the information to render it worthy of protection. There are three circumstances in which the disclosure of information gives rise to an obligation of confidence…

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