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.