How do I protect my Confidential Information?
Obligations of confidence exist in equity. However, before you can bring an action against a person for a breach of confidence you must prove, the information is confidential, there was an obligation of confidence in the first place and there has been a breach of that obligation.
This equitable jurisdiction is really the last bastion of defence. Before you share confidential information about your business or ingenious new idea you will typically want to put in place a confidentiality agreement.
What is a Confidentiality Agreement?
A confidentiality agreement is a common term for:
- Non Disclosure Agreements;
- Non Disclosure Deeds; and
- Confidentiality Deeds.
While there is a difference between a deed and an agreement and different countries use different terms, colloquially these all refer to the same type of document.
See further reading’s below for information about the differences between deeds and agreements.
Typically, lawyers will draft Confidentiality Deeds or Non Disclosure Deeds, being the same thing, which set out what the confidential information is, what purpose the confidential information can be used for, how the confidential information must be protected and what exceptions to the use of confidential information exist.
Unlike the obligations of confidence which operate in equity a Confidentiality Deed or Non Disclosure Deed are binding once they are signed sealed and delivered without the need to prove there was an obligation of confidence. Of course, if someone breaches their obligations under the deed you can make claims in equity also.
What about Intellectual Property rights?
Intellectual property laws provide limited protection for confidential information.
Copyright does not protect your idea or information. It only protects the way in which the idea or information is expressed in a material form. Essentially, you cannot copy the text of what I have written here because I own the copyright. However, you can draft your own content about all the ideas presented on this page, put it on your website and there is nothing I can do about it.
Patents are not confidential. On the contrary a patent document is a public document which expresses an invention in detail but provides the patentee with the exclusive right to exploit the invention. If you have a patentable invention you should speak to a patent attorney.
When should I use a Confidentiality Deed?
Whenever you share confidential information with another person or entity there is a risk they will use that information for their own benefit or your detriment. While nothing can prevent a person, who has no respect for the law, from breaching your confidence at least you have additional protection from the law if you have a valid deed in place.
The most common times my clients sign Confidentiality or Non Disclosure Deeds are when:
- negotiating with software developers;
- presenting pitches to potential investors and venture capitalists;
- negotiating other contractual arrangements or considering credit terms; and
- performing or opening their books to due diligence prior to a merger or acquisition.
Where can I get a Confidentiality Deed or Non Disclosure Deed?
Don’t risk using a free Confidentiality Agreement or NDA template from the internet. Not only are they usually poorly drafted but they often do not comply with the necessary formalities in your local jurisdiction. Speak to a commercial lawyer and obtain the right document for you. Ask them to template it so you can re-use it. It may work out to be one of the best value legal documents your business will ever purchase.
Contact Michael Barber to discuss your confidentiality needs.
BSc, Grad Dip IT, Grad Cert Bus Admin, MAcct, LLB(Hons), GDLP, MQLS, FGIA.
Commercial, Corporate and Technology Lawyer
Contact Michael here or call on 0421 913 989.
Read more about Non Disclosure / Confidentiality documents:
- What is a Non Disclosure Agreement?
- Brisbane Technology Lawyers – What is the difference between a Non Disclosure Agreement and a Non Disclosure Deed?
- Do you need an Australian Confidentiality Agreement (Deed) or Non Disclosure Deed?
- Brisbane Technology Lawyers – What is contained in a standard confidentiality agreement for Australia?