Q&As

In the context of confidentiality agreements, what constitutes an ‘indirect’ disclosure? Is it necessary to specifically use the word ‘indirect’ to capture all types of disclosure by the main disclosing party?

read titleRead full title
Produced in partnership with Michelle Last of Keystone law
Published on LexisPSL on 16/10/2019

The following Information Law Q&A produced in partnership with Michelle Last of Keystone law provides comprehensive and up to date legal information covering:

  • In the context of confidentiality agreements, what constitutes an ‘indirect’ disclosure? Is it necessary to specifically use the word ‘indirect’ to capture all types of disclosure by the main disclosing party?

There is no statutory definition of ‘indirect disclosure’ and there does not appear to be any case law on the matter. This indicates that what constitutes ‘indirect disclosure’ is not a matter which comes up often in practice. However, that may be due to the fact confidentiality agreements typically include reference to direct and indirect disclosures so as to capture a broad spectrum of potential breaches, putting the matter beyond dispute.

The natural language meaning of ‘indirect’ is something that is not direct and is potentially not intended as a course of action. but which nevertheless can have an impact.

The most likely form of disclosure will be that which is deliberate, which would be caught by a restriction against ‘direct’ disclosure of confidential information. In a settlement agreement, for example, if an employee has signed a statement that they will not disclose the terms or existence of a settlement agreement to third parties, it will be a direct breach of that settlement agreement if the employee then tells a former colleague they have received a payment in return for entering into a settlement agreement.

Indirect breaches are more difficult to define and predict. The inclusion of ‘indirect’ disclosure will therefore assist the

Popular documents