Confidentiality and Non-disclosure Agreements.

Non-disclosure agreements/NDA are a form of confidentiality agreement used to provide governing terms to protect confidential information. Commonly, an NDA is entered into by the parties involved at the beginning of a commercial transaction. However, it is possible to enter into a retrospective NDA so long as all parties agree. Retrospective NDAs occur when confidential information is shared prior to the signing of confidentiality obligations.

Almost all types of information can be classed as confidential information and therefore be subjected to a non-disclosure agreement. Whilst there is no specific definition of what confidential information is, it is not possible to claim information readily accessible to the public is confidential therefore meaning restrictions cannot be placed on it.

An NDA should be entered into as quickly as possible, and before disclosing any confidential information within a commercial transaction. Entering into a written agreement is one of the best ways to protect confidential information, as a contractual obligation is easier to enforce.
Whilst the implementation of an NDA can cause deterrence to release confidential information, an NDA cannot guarantee that the confidential information will remain confidential. Should any confidential information be released, remedies are available as either a preventative measure or compensation.

If it comes to light that confidential information may be released or used, an injunction can be sought to prevent this. Injunctions are not much use if the information has already been released.

Another form of compensation available is damages, this offers the claimant compensation for the breach. It is calculated by looking at what the information released would have been used for by the claimant and the potential loss of earnings as a result of the information not being used for its intended purpose.

For further advice and assistance, please contact our Commercial Solicitors on 01604 344512 / 01908 044759 or email info@franklins-sols.co.uk