In order for information to be protected as confidential two conditions must be fulfilled:

(a) The information must have the necessary ‘quality of confidence’. It must not be information, which is in the public domain. With the exception of trivial, immoral and vague information, no restrictions are placed on the subject matter that is protected by the law of confidence.

(b) The information must have been imparted in circumstances importing an obligation of confidence, as for example, where you emphasise that the information is to be kept confidential. If the information does not fulfil the first requirement you cannot make it confidential merely by claiming that it is confidential.

The law of confidence can be used to protect a variety of information. Confidential information can include techniques, experimental methods and protocols, technical information, processes, computer software, formulae, discoveries, prototypes, materials, results, drawings, models, data of all types and calculations.

The sort of material protected may be of a technical, commercial or personal nature. The information does not have to be particularly special in any way and even a compilation of already known information such as a list of customers can, when taken as a whole, be regarded as confidential.

What makes such information worth protecting is the fact that time and effort has been expended in gathering, selecting and arranging the information. The information is protected irrespective of the format in which it appears, thus the law of confidence applies equally to information when embodied in writing, drawings, photographs, goods and products or where it has been disclosed orally.

The information need not be fixed or in a permanent form. An objective test should be applied to determine whether information is truly confidential. Simply marking a document with words ‘PRIVATE AND CONFIDENTIAL’ will not suffice if the contents are commonplace and already within the public domain.

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Image: Rebecca Skinner: