Right of Action
A right of action will lie for breach or infringement of confidential information where you can prove the other party has used confidential information, directly or indirectly obtained from you and without your consent.
Four requirements may be identified:
1. The claimant must identify clearly the information which is alleged to be confidential.
2. The information itself must have "the necessary quality of confidence about it"
3. That the information must have been imparted in circumstances importing an obligation of confidence and
4. There must have been an unauthorised use of that information to the detriment of the party communicating it.
The obligation not to use confidential information or communications may arise independently of the existence of a contractual relationship between the parties.
The Information
Whether the information has the necessary quality of confidence about it has to be determined in all the circumstances. It must not be something which is public property and public knowledge, but it is perfectly possible to have a confidential document, be it a formula, a plan, or sketch or something of that kind, which is the result of work done by the maker on materials which may be available for the use of anybody.
Is the test objective or subjective?
The test used to determine whether an obligation of confidence has been imposed has both subjective (whether the parties themselves thought a duty of confidence had been imposed) and objective (whether the reasonable man thought a duty of confidence had been imposed) elements to it.
Article kindly supplied by Lawdit Solicitors, specialists in intellectual property, internet and e-commerce issues. Lawdit offer discounted fees for all Freelance Alliance members.
