|
confidential information
The Protection of Confidential Information
Confidential information is, arguably, one of the most valuable assets held by a corporation. This is especially so in the current global climate where, more and more, information is the key resource. As a result, it is imperative that a corporation effectively protect against the disclosure and improper use of its secrets. In the unfortunate event of disclosure or improper use, a corporation must also be adequately prepared to respond. Scott Campbell provides an overview of the different ways in which the law will protect against the unauthorized use or disclosure of confidential information. The author begins with a discussion on what the law actually considers confidential. This is important because, in part, a corporation must actually and continually treat its confidential information as such. A failure to do so places a corporation at risk of non-protection, regardless of the purported protection of a confidentiality agreement. The discussion is then divided into two main parts to reflect the different types of corporate relationships that generally arise. The first part considers the application of the law in the context of a corporations employer-employee relationships. After briefly reviewing those factors which assist in the determination of whether someone is an employee, the author focuses on the three available modes of protection: a written confidentiality agreement; an implied contractual term; or a fiduciary duty. The second part considers the application of the law in the context of all other corporate relationships. Such relationships range from the contracting of office services (e.g., housekeeping, catering and information technology support) to joint ventures and other commercial endeavours. Within this relationship, the author focuses on the three available modes of protection: a non-disclosure agreement; a fiduciary duty; or equitable obligations of confidence. The author discusses both the preventative and responsive remedies available to address a real or apprehended breach of confidentiality. Such remedies include: injunctions; Anton Pillar orders; and damages. The author concludes that the most effective way for a corporation to protect its confidential information is by way of a written agreement. These agreements require careful drafting and consideration by a corporation with respect to the type of information that should be protected and the nature of obligations that should be imposed. Throughout this process, the corporation learns which information it specifically considers to be confidential. With that knowledge, it can easily ensure that it treats all such information as confidential. Further, a corporation will be better equipped to respond quickly and effectively to a real or apprehended breach of the agreement.
|
|
Francis R. Allen
Borden Ladner
Gervais LLP
Jeffery A. Barnes
Fraser Milner
Casgrain LLP
H. Garfield Emerson, QC
Fasken Martineau
DuMoulin LLP
Andrew Fleming
Ogilvy Renault LLP
Jeffrey L. Glass
Blake, Cassels &
Graydon LLP
Carol Hansell
Davies Ward Phillips
& Vineberg LLP
David B. Tennant
McCarthy Tétrault LLP
P. K. (Sunny) Pal
Flavell Kubrick LLP
|