Confidential Information & Trade Secrets

Confidential information is information (for example know-how, technical processes, prices, customer lists) which is not in the public domain, that has commercial value to the business. An example of confidential information is a trade secret.

The law on confidential information protects against the disclosure of confidential information by essentially preventing a person from divulging information which has been given to him in confidence and on the express or implicit understanding that the information should not be disclosed to others or otherwise used by him for any unauthorised purposes. The law of confidential information may be used in addition to other intellectual property rights. For example, while copyright cannot protect an idea (only the expression of the idea), the idea or a business plan can be protected through the law of confidential information.

Managing Confidential Information

No registration procedures are necessary for the protection of confidential information. However, it is precisely because there is no formal registration procedure available that it is crucial for proper information and document management procedures to be put in place. Some simple measures that may be taken to protect your confidential information are as follows:

  • Clearly mark confidential information as “confidential”;
  • Where it is unavoidable to disclose confidential information to third parties, put in place an appropriately drafted Non-Disclosure Agreement that takes into account the circumstances of the impending disclosure; and
  • Where confidential information is disclosed to employees, apart from contractual obligations, processes should be put in place to manage the disclosure and use of such confidential information.

We are able to review your business processes and advise you on the steps to be taken to manage and protect your business’ confidential information. Once confidential information is in the public domain, it will lose its value.