I am frequently approached by company directors or senior employees who don’t appreciate the perils of using and sharing what could be classified as confidential information. There is often a misconception that the absence of a non disclosure agreement or a contractual obligation in say an employment contract or a shareholder agreement gives them free rein to share and use that information as they see fit, irrespective of how they have come into possession of that material.
The case of Weiss Technik should act as a warning to take legal advice to ensure that no equitable duty of confidence arises before you share or use it.
It is commonly accepted that an equitable duty of confidence arises when:
- The information has a quality of confidence about it;
- It was imparted in circumstances in which the obligation arises;
- The subsequent sharing was unauthorised and to the detriment of the party imparting that information.
In Weiss the court held that, regardless of any contractual obligation it was plainly obvious to the parties involved that the information they were sharing and using was confidential and should be treated as such.