Trade secrets and confidential information—protection and enforcement
Produced in partnership with William Smith of Bird & Bird LLP
Trade secrets and confidential information—protection and enforcement

The following IP guidance note Produced in partnership with William Smith of Bird & Bird LLP provides comprehensive and up to date legal information covering:

  • Trade secrets and confidential information—protection and enforcement
  • Introduction to the laws protecting confidential information and trade secrets in the UK
  • What is confidential information?
  • Commercial situations giving rise to confidentiality disputes
  • Information v knowledge
  • Relationship with other causes of action
  • Dealing with the creation and transfer of confidential information in non-contentious situations
  • Breach
  • Remedies
  • Confidentiality in litigation

Introduction to the laws protecting confidential information and trade secrets in the UK

Historically, the UK has had no statutory regime to address the protection of trade secrets and other technical confidential information. Their protection derived from equitable common law principles. However, on 5 July 2016 the EU adopted Directive 2016/943/EU on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (the Trade Secrets Directive).

In June 2018, the Trade Secrets Directive was implemented in the UK via the Trade Secrets (Enforcement, etc) Regulations 2018, SI 2018/597 (the Trade Secrets Regulations) which brought the protection of confidential information onto the UK statute book for the first time.

Regulation 3 of the Trade Secrets Regulations makes clear that remedies available pursuant to the UK law of confidential information continue to apply after the implementation date and therefore this Practice Note covers the law already in force before the Trade Secrets Regulations were made, as well as looking at how this is affected by them.

What is confidential information?

Under the common law, it is settled that, for information to be protected as confidential, it must:

  1. have the necessary ‘quality of confidence’, and

  2. be imparted in a ‘situation imposing an obligation of confidence’

Where these criteria are met, the recipient of the information will