There's a reference to confidential information in many business contracts.
But what do the courts say is confidential?
Below are the factors that the courts consider when determining if information is confidential.
In Wright v Gasweld, the court lists factors to determine whether information is confidential.
1. The extent to which the information is known outside the business.
2. The extent to which the trade secret was known by employees and others in the plaintiff’s business.
3. The extent of measures taken to guard the secrecy of the information.
4. The value of the information to the plaintiffs and their competitors.
5. The amount of effort or money spent by the plaintiffs in developing the information.
6. The ease or difficulty to get or copy the information.
7. Whether it was plainly made known to the employee that the material was by the employer as confidential.
8. The fact that the usages and practices of the industry support the assertions of confidentiality.
9. The fact that the employee is able to share the information only by reason of her or his seniority or high responsibility.
10. That the owner believes these things to be true and that belief is reasonable.
11. The greater the handling of the “confidential” material the greater the obligation of confidentiality.
12. That the information can be readily identified.
And, here’s an example of what a confidentiality clause looks like:
(1) the other party’s Business; or
(2) the Company or any related body corporate of the Company or any Business conducted by such entity, including, but not limited to:
(3) The provisions of this clause continue in full force and effect after the termination of this agreement.
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