What makes Information Confidential

Leigh Ellis
March 11, 2013 — 2,951 views  
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Confidential information is generally considered information which is not in the public domain. When information becomes public knowledge, it can no longer be described as confidential information and remain capable of protection by the law. The Springboard Doctrine in English law operates to restrain those misusing confidential information for a limited period, although the information which they have caused to fall into the public domain.

Similarly, information which is already in the public domain can never regain the necessary quality of confidentiality to be protected. So common knowledge cannot be the subject of a confidential communication.

Further, the law of confidential information will not extend to protecting trivial knowledge or information which is useless. Protected information is necessarily has importance to the confider, such as commercially sensitive information, data, and processes in circumstances where its release would injure the owner, or assist others gain an advantage.

The Extent of Dissemination

Simply because a number of people know particular information does not mean that it automatically falls into the public domain. Commercial information may be known by a relatively large number of people, yet still retain the necessary quality of confidence to remain protectable from unlawful disclosure and unauthorised use.

When deciding whether secrets have the necessary quality of confidentiality, courts may consider the nature of the information itself. It may be a commercial secret, information held by a government department or personal information. From a commercial perpective the more identifible, detailed, developed and able to be brought to fruition (or brought to fruition), the more likely it is to be protected by in legal proceedings. Nebulous ideas which nominate a goal or objective are far less likely to seen as worthy of protection by Courts.

Losing the Quality of Confidence

Whether or not confidential information has been unlawfully disclosed will often turn on how the confidential information is disclosed and how widely it has been made available. It is also important to consider whether it was the owner of the information or the recipient of the information has released the information into the public domain or to third parties for misuse. In the latter case the the disclosure is likely to be unlawful, provide dthe necessary quality of confidence in the information.

Manufacturing Information

When information is gathered from sources which are themselves public knowledge in a unique or novel way, the quality of confidentity may exist giving rise to protection by the law in the new collection or body of knowledge. Some ingenuity must have been applied to the body of knowledge to bring about a larger result – the end product should ideally be greater than the sum of its parts, often known as the principle of emergence. Simply because a large amount of information has been brought together does not mean that it would attract the necessary quality of confidentiality to be protected in English law. Some originality or particular skill must have been applied in the creation of the of the body of information. Simple investment of time and money is insufficient.


Confidential Information in Products

When goods manufactured by secret processes are sold does not destroy the confidential information in the manufacturing process or materials making up the product provided that the product cannot be reverse engineered without substantial skill and effort. This is so, because the information is not readily available to the public or indeed competitors.

Form of Information

The law of confidentiality focuses on the information itself and not the form that it takes. Confidential information may be communicated orally, in writing or some other recorded form. In this way, the law of confidentiality is more flexible than copyright, as confidential information is protected regardless of its form. Copyright will only protect the way the information is recorded or expressed in a material form. Also, copyright does not protect mere ideas, unless those ideas a very detailed and then recorded in the form they are recorded.

Springboard Doctrine

When a person unlawfully receives confidential information, they are ahead of the rest of the market to make use of the confidential information. In another situation, a business may come to know confidential information as a result of a business relationship, and realise that investigation upon a particular path or collating information in the public domain will yield a known result.

The Springboard Doctrine applies to prevent persons in these circumstances unfairly benefiting from the use of the information prior the rest of the market – the information was obtained unlawfully or by lawful advantage, and the Springboard Doctrine applies restrain the recipient of the information by injunction for the period which the Court considers the business would have been in if it had to rely on public sources for the information. Also, some consideration will be given to how long the unfair advantage remains.

Unlawful Disclosure and Misuse

Once information has entered the public domain, it cannot recover the quality of confidence to be protected again. When companies unlawfully disclosure or misuse secret information of other companies, an English Court will award the damage and loss suffered caused by the unlawful use. In addition, the discloser may well find itself restrained by an injunction from using the information in the future, in the basis that it should not be permitted to profit or benefit from its own wrongdoing.


Leigh Ellis