• The internet allows widespread instantaneous dissemination of information that was once confidential. This will amount to a breach of confidence by a recipient of the information who posts it to the internet. The owner of the confidential information will usually have an action against such a recipient;
• The information may be readily used and further disseminated by third parties, who may be in different legal jurisdictions. This means that it may be difficult for the owner of the information to bring an action against third parties who use the information. If an action can be brought against the original recipient, however, this is not an overwhelming problem.
A person concerned with maintaining confidential information should take steps to ensure that the information does not end up on the internet.
It is clear that as soon as information is put on a public part of the internet, it will cease to be confidential. Loss of confidentiality depends, however, upon the circumstances of each case.
For example, if access to information is controlled by an access prevention measure, such as password protection, then the information may retain a degree of confidentiality, especially if few people have access to passwords.
The law does not protect confidential information on its own. There is no general action for "theft" of confidential information. The only protection arises out of the relationship between the parties and the obligation of confidence which arises out of the relationship (contractual or otherwise).
Traditionally, a person who innocently came across confidential information and used it without knowing that it was confidential information was not held liable simply because the person had no obligation of confidence.
In the ordinary (offline) environment, the chance of this happening is quite rare. If the information was of value to the owner, the owner would do its utmost to ensure that it is kept secret and secure.
Usually, the information would not be disclosed without a breach by someone who is under an obligation of confidence or by an intentional interception or espionage. Innocent third party usage would be quite rare.
However, with the internet where communication is instantaneous and worldwide, once information is made available, anyone can come across it without knowing that the information was once confidential and use the information.
The owner would have virtually no recourse against these third parties.
The speed with which information can be disseminated with such wide reach also affects the effectiveness of legal remedies that are available and the ability of the courts to act quickly when faced with an application to stop the unauthorised dissemination.
Emails
Email is not a secure communication tool however many people use email to communicate confidential information. Email may be forwarded to any number of people with the greatest ease and if this happens and the dissemination is wide enough, it is likely to be held that the information has lost the quality of confidence.
Intranet
The case of the internet can be contrasted with that of intranets. Many businesses now use intranets for internal activities. Since intranet access is restricted by passwords and IDs, the nature of intranet is different from the Internet and therefore confidential information posted on an intranet may not necessarily lose the quality of confidence.
However, the more people who are aware of the confidential information, the more likely it is that it will be leaked. Also, no firewalls or other security measures can withstand the persistent attempts of a determined hacker.
Except when provided under covered of a confidential agreement, you should avoid receiving information on a confidential basis from anyone outside of your business.
Wrongfully using another's trade secrets can expose you and your employees to legal action.
Contact Steve Brown at sbrown@etiennelaw.com
