On a daily basis, individual and businesses create commercially sensitive information that create that competitive edge in an already competitive marketplace.

Examples of confidential information includes customer lists, marketing plans, product development plans (yet to be patented) and documentation. Put simply, a documentation or information that has not been publicly disclosed is considered confidential. Confidential information, know-how or trade secrets can represent considerable value to a business.

The best way to protect confidential information is with a signed confidentiality agreement, known also as a non-disclosure agreement. Having an agreement of this type in place properly prepared will clearly document the respective obligations of the signing parties. Importantly it should clearly articulate what the recipient of the confidential information can or cannot do with the confidential information being disclosed.

Even without an agreement in place, the equitable action for breach of action is available in certain circumstances. To show that there has been breach of confidence, the party asserting the breach needs to show:

the information imparted is confidential and not in the public domain;
the information was imparted in such a way that there was an obligation on the recipient of that information to keep it confidential; and
the recipient of that information uses it or discloses it to another without the permission of the confiding party.

Given the potential value of that lies in confidential information, it can be an important business consideration to protect that value and revenue stream if misused. Some of the more common scenarios where a dispute arises in relation to misuse of confidential information include an ex-employee’s use to the former employer’s customer lists or the recipient of a business pitch subsequently going on to separately commercialise that information.

Like any business expense, deciding to defend or enforce your rights in a breach of confidence dispute requires a careful cost benefit analysis. We understand that. Our approach is to understand your business objectives, understand where any potential dispute resolution strategy or, if required, litigation, fits within those objectives and then provide you with all your relevant options and strategic considerations.

How We Can Help You

Our legal team can assist you with:

confidential information / trade secret advice, strategy & recommendations
confidential information disputes and related dispute resolution strategy
confidential information litigation proceedings in the Federal Circuit Court of Australia or Federal Court of Australia
preparation of confidential information / non-disclosure agreements
preparation of any resulting settlement agreements