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.

What information is protected?

The duty of confidence arises in circumstances where an individual is privy to information which 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 which 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:

  • An obligation imposed by contract – for example, non-disclosure agreements.
  • An obligation implied because of the circumstances of disclosure – this is determined on the basis of whether a reasonable man standing in the shoes of the recipient of the information would have realised that the information was being given to him in confidence.
  • An obligation implied because of the special relationship between the parties concerned – for example, employer/employee relationships.

The best way of ensuring that confidential information is recognised and treated as such is by contract. If no express requirement for confidentiality is imposed, the manner in which the discloser treats the information can be held as indicative of its level of confidentially. Talking about information in public places, for example, would cause the recipient to assume it was not confidential in nature. 

Breach of confidence

SafeAn action for breach of confidence is based on the conscience of the recipient who must have agreed or known that the information is confidential. Thus an action for breach of confidence can be brought against the original recipient of the information and any subsequent recipient who becomes aware of the fact that the information is confidential.

An action for breach of confidence may be brought against a person who has used or disclosed, or threatened to use or disclose, confidential information without permission.

The remedies for breach of confidence are damages to compensate the claimant, an account of the defendant's profits and/or an injunction to prevent the defendant from disclosing the confidential information or making further use of it.

If you have any questions on this article or would like to propose a subject to be addressed by Synapse please contact us.


Michael Washbrook

Michael is senior counsel in the Patents group based in our London office.