Practical steps to protect or obtain access to confidential information
Practical steps to protect or obtain access to confidential information

The following Information Law practice note provides comprehensive and up to date legal information covering:

  • Practical steps to protect or obtain access to confidential information
  • In brief
  • Protection when creating information
  • Clear contractual drafting
  • Practical protections
  • Protection when disclosing information
  • Intentional disclosure
  • Unintentional disclosure
  • Gaining access to confidential information
  • Overcoming objections preventing access to confidential information

In brief

This Practice Note supplements the Practice Note: Trade secrets and confidential information—protection and enforcement, which identifies when legal confidentiality obligations arise and how these are typically dealt with in commercial contracts.

Often businesses refuse to disclose information on the basis that this would breach confidentiality obligations. This Practice Note looks at how those objections can be overcome.

Protection when creating information

Clear contractual drafting

It is important that confidentiality clauses are tightly drafted. For example, confidentiality clauses typically permit disclosures of confidential information where required by 'applicable law' or the rules of a 'stock exchange'. If it is intended to allow disclosures permitted by 'English' law and/or the London Stock Exchange (as opposed to a foreign law or a foreign stock exchange) this should be made clear.

Apart from confidentiality clauses, the use and disclosure of confidential information can also be restricted by other clauses. In particular, these include data protection clauses (which often restrict the use that can be made of personal data) and intellectual property clauses (which may restrict the use of databases). It is important to ensure that all clauses in an agreement restricting use or disclosure of information are mutually consistent so as to avoid uncertainty or disputes.

Assuming that appropriate restrictions on use and disclosure of information have been implemented (in contracts with employees, contractors, subcontractors and third parties), what else should

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