Checklist – Confidentiality
No legislation: Based on common law (ie. case law helps to establish whether confidentiality exists)
Use this checklist for general confidentiality issues (ie. NOT involving an employee).
1. Is the information Three-point test per Coco v Clark:
confidential? a. Did the information have the necessary quality of confidence about it?
In De Maudsley v Palumbo and Others, it was held that a considerable degree of
preliminary development of definite product needs to be shown. Vague ideas not
covered.
- Design drawings/customer information more likely to be protected.
The owner must believe that the information is confidential, i.e. not in the public
domain; - state that publicly available information will no generally be regarded as
confidential.
Draw on the points from Thomas Marshall v Guinle:
- Owner believes release of information would be injurious to the owner or
advantageous to rivals;
- Owner believes information is a secret (not in the public domain);
- Owner’s belief is reasonable;
- Information is judged in light of its usage in the industry/trade concerned.
b) Was the information imparted in circumstances importing an obligation of confidence?
Whether an obligation to keep information confidential has arisen is judged objectively
(De Maudsley). Such an obligation can arise in a number of circumstances:
Imposed by contract – where the parties have expressly (or impliedly) agreed to keep
certain information confidential;
Imposed by a special relationship between the parties – eg. employer/employee.
Implied by the circumstances of the disclosure – if the party receiving the information is
aware that the information is confidential, they will generally be bound by an obligation
of confidence.
- AG v Guardian Newspapers (No 2) – held that an obligation of confidence will be
found where the recipient had notice (or is deemed to have had notice that the
information was confidential and it’s just in all the circumstances t impose the
obligation.
- Also, includes implied circumstances, such as picking up a private diary.
Consider the way in which the information was handled.
Has the owner made it clear that documents were confidential?
How did the person access the documents?
c) Was there any unauthorized use of the information?
Always state that having an express duty of confidentiality makes this ground easier to
establish.
De Maudsley v Palumbo and Others – ideas did not overlap to constitute sufficient
degree to be unauthorised.
2. Benefit of the IPR This protects information against unauthorised disclosure, indefinitely.
Arises automatically and does not require registration.
No legislation: Based on common law (ie. case law helps to establish whether confidentiality exists)
Use this checklist for general confidentiality issues (ie. NOT involving an employee).
1. Is the information Three-point test per Coco v Clark:
confidential? a. Did the information have the necessary quality of confidence about it?
In De Maudsley v Palumbo and Others, it was held that a considerable degree of
preliminary development of definite product needs to be shown. Vague ideas not
covered.
- Design drawings/customer information more likely to be protected.
The owner must believe that the information is confidential, i.e. not in the public
domain; - state that publicly available information will no generally be regarded as
confidential.
Draw on the points from Thomas Marshall v Guinle:
- Owner believes release of information would be injurious to the owner or
advantageous to rivals;
- Owner believes information is a secret (not in the public domain);
- Owner’s belief is reasonable;
- Information is judged in light of its usage in the industry/trade concerned.
b) Was the information imparted in circumstances importing an obligation of confidence?
Whether an obligation to keep information confidential has arisen is judged objectively
(De Maudsley). Such an obligation can arise in a number of circumstances:
Imposed by contract – where the parties have expressly (or impliedly) agreed to keep
certain information confidential;
Imposed by a special relationship between the parties – eg. employer/employee.
Implied by the circumstances of the disclosure – if the party receiving the information is
aware that the information is confidential, they will generally be bound by an obligation
of confidence.
- AG v Guardian Newspapers (No 2) – held that an obligation of confidence will be
found where the recipient had notice (or is deemed to have had notice that the
information was confidential and it’s just in all the circumstances t impose the
obligation.
- Also, includes implied circumstances, such as picking up a private diary.
Consider the way in which the information was handled.
Has the owner made it clear that documents were confidential?
How did the person access the documents?
c) Was there any unauthorized use of the information?
Always state that having an express duty of confidentiality makes this ground easier to
establish.
De Maudsley v Palumbo and Others – ideas did not overlap to constitute sufficient
degree to be unauthorised.
2. Benefit of the IPR This protects information against unauthorised disclosure, indefinitely.
Arises automatically and does not require registration.
