A VOW OF SILENCE?
We are often asked to draft Confidentiality Agreements or Non-Disclosure Agreements (NDAs) for our commercial clients. This is because the best way of actively imposing obligations on a recipient of confidential information is under a written contract. It removes any doubt about whether the recipient knows the information is confidential or how it should be treated, and the contract should (if it comes to it) be easier to enforce than bringing a claim for breach of confidence under the general law.
So NDAs can be very useful, especially if you find out about a possible unauthorised disclosure of information before it actually happens. But they can only go so far. If details of your brand new strategy document or product are disclosed publicly, there is nothing you can do that can make that information secret again, even if you have an NDA in place; the cat is out of the bag.
As well as getting recipients of confidential information to sign NDAs before any information is released to them, there are also some practical steps you can take to help protect your business information, including:
- restricting access to confidential information i.e. making sure that it is released on a need-to-know basis, to be used for a specific purpose;
- limiting access to areas where confidential information is kept or generated, and using passwords and/or data encryption where necessary;
- ensuring that any relevant documents are marked “strictly private and confidential”;
- making sure your employee and consultant contracts contain clear and comprehensive confidentiality provisions (and keeping records of which projects your personnel work on);
- reminding staff not to discuss sensitive company business on public transport, in lifts or restaurants, on social media or at trade shows/conferences, and to be careful when using lap-tops and mobile phones for company business in public places;
- asking departing staff to confirm in writing that they have returned all company property, and reminding them of their confidentiality obligations.