Confidential Information
The common law will uphold a person’s obligation to keep a secret, without the need for registration. Discover more below or click to speak with our Business Services team.
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The common law will uphold a person’s obligation to keep a secret, without the need for registration. In order to determine whether information is confidential, a 3 point test to establish the implied duty of confidentiality will be applied as follows:
- Does the information have the necessary quality of confidence about it?
- Was the information imparted in circumstances importing an obligation of confidence?
- Was there any unauthorised use of the information?
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In many circumstances it can be difficult to establish all the elements of this 3 point test. As such, businesses should act prudently in only disclosing their confidential information when they have obtained a signed Non-Disclosure Agreement from the recipient party.
Non-Disclosure Agreements can be used to protect know-how, ideas, themes, customer lists, pricing strategies, technical information, methodologies and commercial plans. There are certain “danger areas” where they should always be used, such as:
- when engaging in a joint-venture;
- when instructing consultants or sub-contractors; and
- during the initial discussions around a business acquisition or disposal.
Confidential information, once the 3 point test is satisfied, is then protected for as long as it remains confidential in nature. Should the information become outdated, or if the confidentially agreement is time limited then the information’s confidential nature may be lost.
A breach regarding confidential information can be established where confidential information is: threatened to be used; used for an unauthorised purpose; and disclosed without authorisation to another.
The remedies for the unauthorised use of confidential information include:
- an account of profits; and
- an inquiry into damages.
Frequently Asked Questions about Intellectual Property Law
What is confidentiality in legal services?
Confidentiality in legal services refers to the obligation of legal professionals to keep information shared by clients private. This means that any information disclosed by a client during the provision of legal services cannot be shared with others without the client’s consent.
Why is confidentiality important in legal services?
Confidentiality is crucial in legal services as it allows clients to fully disclose all relevant information to their solicitor without fear that this information will be disclosed to others. It’s a key component of the trust between a client and their solicitor, and it enables the solicitor to provide the best possible advice.
Are there any exceptions to confidentiality?
Yes, there are certain circumstances where a solicitor may be obliged to breach confidentiality. These include situations where the solicitor suspects money laundering or terrorist financing, or where they are required by law to disclose certain information.
How does Franklins Solicitors ensure confidentiality?
Franklins Solicitors takes confidentiality very seriously. We implement strict policies and procedures to protect client information, including secure storage and handling of documents, robust data protection measures, and thorough training for all staff members. We are proud to hold the ISO9001, Lexcel and Cyber Essentials Plus accreditations, which are a testament to our commitment to delivering an excellent client experience.
Does confidentiality apply even after my case is over?
Yes, the duty of confidentiality continues indefinitely, even after the solicitor-client relationship has ended. Your information will not be disclosed unless you give your consent or there is a legal obligation to do so.
How does confidentiality relate to data protection laws?
Data protection laws, such as the General Data Protection Regulation (GDPR), provide rules for how personal data should be handled. These rules align with the principles of confidentiality in legal services and require that your personal data is kept secure and confidential.
What happens if confidentiality is breached?
Breaches of confidentiality are taken very seriously. If a breach occurs, it could result in disciplinary action against the solicitor and potential legal action. If you believe your confidentiality has been breached, you should report it to the relevant regulatory body.
Can I waive my right to confidentiality?
Yes, as a client, you can choose to waive your right to confidentiality. However, this must be done voluntarily and with full understanding of the potential implications.
Contact the Franklins Intellectual Property team
If you have any questions about intellectual property law, please don’t hesitate to contact our team of experts who are on hand and ready to help you.
