Countersignature Camper Confidential Information Made Easy

Signature camper confidential information

good afternoon and welcome to the first webinar in our confidential information series before we start the webinar we have a few small housekeeping points to go through and firstly to keep background noise down you've been placed on mute there will be an opportunity to ask questions at the end but you can also use the chat function throughout the presentation today Deportes any questions you might have and we'll just pick them up at the end this is the first webinar in our series focusing on confidential information and part of a wider series of webinars in the commercial litigation team the next webinar in our series will focus on confidentiality in practice and preventing misuse of confidential information webinars from previous cities are available if you fall with a link on screen and following today's webinar at your walks we sent a recording your speakers today are eloisa Creighton and me Matt Phillip I work in the commercial dispute team and regulate advise clients were confidential information and contract and Eleazar works in our employment team and has experience in dealing with confidentiality clauses when they arise in employment contracts and settlement agreements in today's webinar we are going to provide a general overview of the law relating to confidential information before going on to look at how to define confidential information including trade secrets and how to protect this information in the contract the format of the webinar is shown on the screen and to start off we'll take a more in-depth look at what confidential information actually is well then horn in on trade secrets one category of confidential information next we will discuss some contracts where confidentiality clauses are particularly important such as employment contracts settlement agreements nda's and joint ventures and we'll then going to look at some common drafting issues which can arise when dealing with confidentiality clauses well then in the webinar with some practical advice and the general principles discussed today are applicable in both Scotland and also in England and Wales unless we indicate otherwise and that's because the underlying wall is very similar in both jurisdictions now the law of confidential information is used to protect information that falls outside the legal protection that's afforded to other intellectual property rights like patents or trademarks in some ways the law in this area is based on a simple moral standard that if someone has said they will keep a secret then they should do so to come within the definition of confidential information the information must have what's called the necessary quality of confidence and also be disclosed in circumstances which sure that there is an obligation of confidence if this test is met then the recipient of the information is not allowed to use it at the prejudice of the giver of information without their consent this includes disclosing it on an unauthorized basis to third parties and the protection can arise even in circumstances where no confidentiality agreement is signed but in practice it's often sensible to have some terms written down just to provide some clarity about what can and can't be done with information received as Matt mentioned there are two parts to the definition of confidential information the first is that it has the necessary quality of confidence this means that cannot be public knowledge in order for information based on public domain information aimed to acquire this quality of confidence someone must have added some sort and efforts to existing properties main materials grades are pulled by adding a set of criteria for selecting a list of data or having a description to the data items more than just efforts is required for example compiling a list of every address in a given area would take effort but not the confidential as anyone contributed some examples of information which may be confidential includes ethical information customer less business plans scientific discoveries recipes which are not padded from the end results and financial information one term often used in connection with confidential information is new house which will scrapes practical information resulting from experience and pasting which is secret significant and useful so to qualify its consent earth confidential the information must also be imparted in circumstances which shoulder is an obligation of confidence the classic situation would be that of information provided to a trusted adviser the advisers not been allowed to capitalize on the information for their own benefit for example in the recent case of CF partners against Barclays CS partners are originally looking to obtain a loan from the back too quiet a particular company the bank acquired information from CF partners over the course of the negotiations which then fell through Barclays then bought the target company and made a big profit sale in their own the bank haven't signed a confidentiality agreement with CF partners directly the had signed one with it with its third-party intermediary the Court finds in the circumstances where the information have been supplied to Barclays for the purpose of evaluating CF partners acquisitions the bank subsequent benefit from that information to buy the company amounted to a misuse of the information and it's also worth noting that if the recipient of confidential information discourses information to a third party and the third part is aware there's confidential then an action for breach of confidence can also be brought against that third party if it becomes necessary the test is applied by the court is to look at the reasonable man and to ask if such a person standing in the shoes of the recipient of the information would have realize that font reasonable grounds that the information was being given some in confidence the relationship between the person giving the information and the recipient may also write create an obligation of confidentiality for example employees are duty-bound to keep their employer secrets however the best way of protecting confidential information is not throw I on a juicy being unfair and instead to make the GT explicit by either a standalone confidentiality agreement or a confidentiality clause within our contract before disclosing any information we're going to look at some examples of contracts where this is particularly relevant in a moment and first the word on the confidential information relating to trade secrets trade secrets are the confidential information that's kept by a business they give it an edge over its competitors in the UK and the definition of a trade secret has been developed through a case law but can often be difficult to draw the line between information that's commercially sensitive in a more general sense and information that can be protected as a trade secret the law covers information which is secret in the sense that is not generally known among or readily accessible to people within circles that normally deal with information question has a commercial value stemming from the fact that as a secret and it's subject to reasonable steps by the holder of information to keep it secret for example you may have had stove and brew with a secret recipe going away to three people who apparently never travel on the same claim just in case and the EU directive on trade secrets is also to be implemented by the end of 2018 and it seeks to harmonize the approach taken by EU member states and protecting trade secrets i'm specifying what remedies should be available to a trade secret holder to protect the trade secret whatever the impact of brexit will have and the european scrutiny committees expressed their view that no changes to UK law would be required to implement the director and so if you operate throughout europe the harmonization of the definitions and remedies should make your life a little bit easier one common question that's often asked is why though of confidential information should be relied on rather than using other intellectual property rights such as patent or copyright protection there are several advantages the laws of confidence which make a valuable tool for a company and for example in contrast the patterns designs are copyright the rights covered by confidential information on the subject a time limitation and trade secrets and confidential information can subset for as long as the business continues to trade and even beyond and in addition applying for a patent results in publicity around your idea which can with competitors learning from the pattern or using and benefiting from it secretly despite the legal prohibitions copyright protects on the copying of the information and so it wouldn't for example protect an employee who's committed key customer details to memory and then approached the customers after the first employment period has ended and this last example highlights how important confidentiality clauses are an employment contract again we'll look at this in further detail later while many agreements contain provisions about confidentiality within them it's also common to have sector agreements known as non-disclosure or simply confidentiality agreements typically they will include a definition of the confidential information being protected an obligation to keep the information secret and only use it for the permitted purpose outline of the circumstances in which in which and people to whom the other parties for method to disclose the information including where this is mandatory for example by regulators and what sister happens information and records when no longer required when defining confidential information party should consider whether they should include information disclosed orderly an episode and think about how this would be policed for example not maybe taken during meetings and the deceptive will seek to reduce the scope of the confidentiality definitions to exclude information as in the public domain either no or over the course speed demon information that the recipient already lawfully knows information received my third party and then formation disclosed on a non confidential basis some of these exceptions are quite standard but the disclosing party will need to think carefully about whether they are appropriate in every case the disclosing parts you will often want to make the definition of confidential information as wide as possible as we've discussed merely labeling Saracen information as confidential will not make it so if it is not inherently confidential a balancing acts must be Carrie Ghose as the definition is to wade then it may not be upheld by the Court work whereas if the attention is to narrow that it may not catch the information that the parties would wish to protect having a written agreement avoids any doubts about whether the recipient of the information knew that it was confidential and therefore makes it easier for a claim for breach of contract we raised or if the disclosing party suspect the recipient is about to breach the agreement they could support an application for an interdict or injunction to stop them doing so it also helps the disclosing party focused on what when how and to whom information needs to be disclosed and to put in place procedures to secure the information but the non-disclosure agreement is not a silver bullet and its limitations should be borne in mind we will look at this in further detail in our third webinar in this series but we'll focus on preventing messages of confidential information but in brief there are some issues with potential remedies for the breach of confidentiality obligation firstly the main remedy for the breach of a nondisclosure agreement is an injunction called an introduction Scotland to prevent release of the info confidential information however accessorizing sort of a party knowing that the recipient is about to breach the agreement in advance of its taking place once the Regis happened and the information is out there there is no legal ramifications in any event injunctions and only granted at the course discretion based on what is just when convenient and if proportionate to the mess use that has occurred or is going to occur in terms of compensation it may be possible to seek damages or an account of profit if the recipient has radius of information accurately quantifying the damages can be quite difficult especially with the value of the information lies more in its potential future value rather than its current value the court has taken different approaches to words of damages in the past ameya system on the basis of what the party would have paid for the opportunity to be released from its obligation not to disclose the information ie the hypothetical negotiation basis or else may is there for damages on the basis of a loss of chance even if the recipient of the information acts in the utmost good faith there was there will be some information that will inevitably subconsciously influence their actions one common place the fine stand alone non-disclosure agreements as in the context of acquisitions or joint ventures when they're saying that an early stage in negotiations typically the agreements in this context will cover the fact that there is a potential sale or joint venture being negotiated things like the existence of the confidentiality agreement itself and its terms and any detailed information that's going to be the school's during the negotiations in connection with the potential sale or joint venture in an acquisition context buyers will want to prevent fishing expeditions where competitors are not actually interested in acquiring the company we just want to profit from the detailed knowledge of us practices and processes and these agreements are a way to protect anyone who has starting negotiations to buy the company from using that information for their own commercial gain for joint ventures the particular terms are able to depend on whether both parties are disclosing information where the businesses to be contributed to the joint venture or whether one part is disclosing information about a business to be contributed to the joint venture and the other party is disclosing information about for example intellectual property rights to be licensed to the joint venture one other point to them and is in so in this context that's when the obligations of confidentiality will expire and if they're intended to continue after the joint venture comes to an end or it's taken over by one of the parties not all of the information employees acquire in the course of an employment will be confidential but it is important to ensure that to the extent that it is employees are made aware that their duty to keep it secret Coleman longitudes of confidentiality our rails are relevant here as we discussed earlier if information which is not publicly available is given in circumstances which showed an obligation of confidence a duty of confidentiality will arise the supplies the employment relationship is much just a relationship between someone and their trusted advisor as we want to talk about there are particular classes of confidential information which the course of Hale's are implied into every employment relationship however over and above these common law duties of confidentiality most employers contracts and Tina clause spelling out the details the employees duty to keep confidential information speak to if the consider first for its contained within the implying duty of confidentiality during employment the leading case in this area is the standard chicken a limited against Fowler the sender bread slaughtered and sold chickens and employed mr. Fowler as a slave sales manager mr. Fowler resigned when he was arrested and charged for the sector 45 cases of chickens and although we were subsequently acquitted of all charges the next year's who sets up his own business competing with the sender and recruiting former colleague colleagues miss and acclaimed mr. Federer and his colleagues had breached their contracts of employment by using confidential sales information relating to the requirements of customers and the prices they paid as the employees is not saying contracts with expressed confidentiality restrictions the high court had to consider whether the restriction should be implied into their contracts and f so whether they had reached them ultimately was found so there have been no bleach as the information in question fell short of being categorized as a trade secret when considering the claim the judge placed information available to employees in to see categories first that is the trivia of the business which is not at all confidential including all information which is available to the public either generally or on-demand as well as custom and practice in the trade for example a published patent specification well known to people in the industry concerned I've been described as falling into this Cassidy secondly to this information which has some confidential elements which an employee can be obliged to keep confidential during the employment but not for an unlimited period after the employment ends this has been described as information that employees must keep confidential but which once learned necessary becomes part of their skill and knowledge applied in the course of business without express restrictions however on termination of the employee's employment then the law allows them to use is filled skill and knowledge for its own benefit in competition with his former employer so thirdly there are truly confidential trade secrets which may be capable of remaining confidential indefinitely enjoying these distinctions the judge stated that the cassadines of which particular information falls may depend on the nature the industry nature of the information whether the employer impress the confidentiality of information on the employee and whether the confidential information can be easily isolated from other information which the employee is free to use or disclose it's also fair to say that there's been some worrying of the lines between the categories and for example in the case of an employee carrying away card index system that contained contact details for 325 of the employer's business contacts it was found that this was not trade secret and but it was nevertheless confidential information that the employee could only use the extent that was carried away in his head as there was so much information in this case it was clear that he could not have used the whole index without having deliberately memorized a copy that and so this was a breach of this duty of confidentiality in assessing the circumstances the courts will also look at whether the information can properly be said to be the property of the employer or whether it's actually the employees own skill experience nor how in general knowledge which they can use without restraint in this context there's a difference between an ex-employee who makes use of knowledge that's recalled from years of experience and a particular job which will normally foreign parts of their own knowledge and information that's specifically committed to memory which will usually belong to their employer for example an employee may have encountered problems and a particular process in this previous job and have been party to the solutions that the company developed this over if the same issue reoccurs in a subsequent job the knowledge of what can be done to fix it is too vague to count as a trade secret and so is fine to be the employees skills knowledge and experience and general noho games throughout their employment due to this gray area between confidentiality and trade secrets there's an implied duty of confidentiality for employers and they're wise to attempt to properly specify in the employment contract that particular defined and sensitive information is confidential to the point of being a trade secret there's disclosures forbidden and that the employer will be entitled to seek damages or injunctive relief if the employee this causes earth when drafting employment contracts care must be taken to ensure that the definition of confidential information is not so wide that attempts include information which is inherently not able to be protected running the rest of that court would not hold it in any proceedings and as with any type of confidentiality agreement or cause you need to consider where the information came from as purpose and the damage it could do to the owner if it was the scores without authorization it's also worth noting at this stage if an unauthorized disclosure of confidential information goes to the risk of the employment contract the employer may be entitled to dismiss the employee Somali that is without notice provides it's reasonable to do so in all the circumstances f however this speech is not fundamentals the employment contract then the employee may argue that the dismissal itself was in breach of contract ie it was a wrongful dismissal freeing them from any expressed contractual restrictive covenants and that can be a real worry if the employer if the employer has been failing to reach the employment contract then that then allows the employee these are any posts termination restrictions are no longer binding to as one to watch out for the employee may also be able to argue that this method was an unfair dismissals so a statutory unfair dismissal not really connect to the contract so and those circumstances it's always important to ensure that a fair procedure has been sold within any dismissals to minimize the risk of a claim proceeding and if you've being successful after the termination of employment although it's the information class as a trade secret continues to be protected by the employees and flied to T of confidentiality as usual for concerned employers impose expressed obligations in the employment contract to clarify for the court that the information is properly a trade secret and to emphasize to the employee the confidentiality obligation the more precisely these courses are drafted the more likely is that they will be respected by the employee and if it comes to upheld by the Court just worth spelling out in the contract that the information specified is classed as a trade secret and that the information is important employer and this is why it is taking steps expressly protects its information and the damages may not be adequate may not be an adequate remedy and so the employer will be invasive see conjunction or enter days the court should be more wary of imposing a continuing obligation of non disclosure of confidential information as opposed to trade secrets following the termination of employment men general is the employer can demonstrate a proprietary interest and has attempted to protect the information expressly then as likely that this will be upheld an F inadequate contractual provisions have been made in the employment contracts to protect the confidential information another agreement might be appropriate not BSA from an agreement previously known as a gaza called promise' human before we want to talk about settlement agreements however I wanted to highlight the particular position of company directors by reason of the directorship they are continuing extra duty of confidentiality this means that they must use or disclose the company's confidential information only for the benefit of the company in addition similarly to an employee's employment contract there were also normally be expressed confidentiality provisions contained within their service agreement settle arguments are of course not only used in employment setting but they are an example of where steps often need to be taken to protect confidential information to continue with employment example and they will often usually contain causes providing that the employee has to return all of the employers property including confidential information and documents relating to its business the confidentiality clause will also stipulate that the employee must not make copies of use or disclose any confidential information except for any such information which is in or already comes into the public domain as well as dealing with confidential information belonging to an employer another cause usually provides that the agreement itself and its terms will be kept confidential in the context of litigation settlement agreements often confidentiality causes and prevent the parties from disclosing the terms of settlement beyond what is required for accounting purposes or other statutory obligations and this means that a party can make an offer to settle without the fear of that offer appearing to be an admission of guilt one of the tax point to consider is that sometimes confidentiality obligations and settlement agreements and can require the practice both to keep the information and confidential in which cases no issue but if only the employees been to keep it confidential then in the past hmrc is argued that income tax should be paid on the consideration for keeping it confidential finally whistleblowing legislation under the public interest disclosure act in 1998 must also be borne in mind when drafting confidentiality clauses particularly in settlement agreements box on employment contracts the legislation provides protection for workers reporting mal practices by their employers or third parties against victimization or dismissal for this to apply the worker must have a reasonable belief that the information they are disclosing shows are relevant failure and also have a reasonable belief that the disclosure is in the public interest the disclosure will then be protected depending on the identity of the person whom to whom it's made with the primary method being disclosure to employers and if not then responsible third parties or prescribed persons for civil service organizations government departments and related arms and for these specific guidance has been issued which stipulates that confidentiality causes should only be included in second agreements where necessary and not as a matter of course they also need to ensure that not the terror staff from raising concerns with the regular theory or other statutory body about wrongdoing or pro practice in the department this guidance did not however cover other public sector organizations such as the NHS police or universities the note to consider some common drafting issues firstly ensure that the definition of confidential information is adequate it needs to be broad enough to cover any deliberate or accidental disclosure of information to the second as well as any works derived from the confidential information the recipient will conversely often want to restrict the definition as much as possible next set then clearly that the recipient must keep you the confidential information secret and also explain what purposes they're allowed to use the information for speak in what circumstances the recipient is able to disclose the information for example they will commonly be allowed to discuss disclose to their employees and advisers sometimes the partial disclosing the information will try and make the deception employees and advisors site separate confidentiality agreements in relation to the informations versus generally felt to be a bit excessive and it's sufficient that the recipient will be responsible for any beach of confidence by the employees and advisers made provisions for what should happen to the information if the project doesn't go ahead which normally means it should be returned or destroyed and finally make sure you specify the duration of the agreement taking into consideration how long the information will be valuable and confidential for the two main aspects to protecting confidential information under the law of confidence are to ensure that the information is only the score some circumstances where is clear that the recipient has an obligation to keep it confidential and to ensure that access to the information is restricted it will normally be far easier to enforce a contractual obligation than to try and rely on the common law and sort of thinking about potential issues in advance and entering into agreements accordingly is an important way of protecting your confidential information will be looking in more detail about how to maintain what's called an ester equality of confidence within the business and our next webinar in this series but in brief and once you've documented the confidentiality obligations there's some general practical it and that help you establish and maintain confidentiality some of them are listed on the slide and the include restricting access to the confidential information and labeling information that's truly confidential as such limiting access to areas where a confidential processes take place and considering limiting hourly the scorcher to bring back information that's truly a trade secret until you've reached an advanced stage of negotiations and you're thinking about whether it's essential at all for it to be disclosed advising employees how to keep information confidential for example not discussing company business in public areas and taking care when using laptops or tablets in public and ensuring that there are appropriate IT policies and security protections in place especially if your company operates a bring-your-own-device scheme as all making a bit obvious but it's all part of demonstrating they have the policies in place and that they are being enforced which is helpful if the action needs to be taken and respond to a breach and finally one other point is just remembering to keep audit logs and records so you can sure what projects each employee or consultants been working on that really concludes today's webinar and what we'll do now is take any questions and as I mentioned at the beginning you can and put any questions in the chat box and while you're doing that I just hit the opportunity to mention that there are also a number of other webinars and the city is being run by Sherri Shepherd and where the run at the moment including on a property dispute resolution and construction law and if you'd like to find out any more about these or catch up on the previous webinars on these cds then the links on the screen now doesn't like we have any questions at the moment so what would is we will cause the webinar they are but if you do have any questions please just feel free to stick them in the chat box before you leave and we will pick up with the the question or later so thanks very much thank you