Entering into a confidentiality or non-disclosure agreement is a very good way to protect your confidential information. By having one signed you will have written evidence that whoever is receiving your confidential information has agreed to keep it under wraps. Putting it down on paper always leaves less room for doubt. However, this may not always be possible. It is unlikely that you will want to walk away from a business opportunity (like bringing a large investor on board or signing up a lucrative new customer) simply because the other side refuses to sign a confidentiality agreement.
Fortunately, the law provides an equitable remedy for people who give confidential information to people who then make use of it or disclose it to other people in breach of confidence. For you to be protected in such situations, the Court will have to be satisfied that:
- the information itself is confidential in nature (e.g. commercially sensitive information)
- it was clear to the recipient that it was meant to be kept confidential
- the recipient made use of the information in a way which was not authorised by you
- you suffered some detriment as a result of the unauthorised use
If all these requirements are met, a full range of remedies are available at law for the unauthorised use or disclosure of confidential information, including injunction, damages, an account of profits and delivery up or destruction of the infringing items. However, this could be an expensive and timely process. Sometimes your best protection might be to limit the information you disclose.
Almost any type of information can be worthy of protection. Information relating to new products, trade secrets, financial performance and customers may be a business's most valuable asset and give it an advantage over its competitors.