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Have you had an employee take your business secrets elsewhere?

Tuesday, July 30, 2019

An action for breach of confidence has quite a wide scope. It may arise where an employee takes secrets from their boss to their competitor, or even where a partner in a married couple divulges secrets of their relationship. The basis for the action can come from a variety of legal realms, however the most common is through a provision in a contract of employment.




In order to maintain an action for breach of confidence, the person who brings the action must establish three elements;
1.     That the information has the necessary quality of confidence or secrecy;
2.     The information was imparted in circumstances importing an obligation of confidence;
3.     There was (or may be) an unauthorised use of the information.
Unless you are an expert, it can be quite a complex process to determine whether these elements are met. Most people will approach a lawyer after satisfying element three, however it is numbers one and two which create the most difficulty.


If you are concerned because you may have disclosed confidential information, do not fret. There is a range of defences which may aid you. Defences to an action for breach of confidence include:
·         Consent of the confider
·         Disclosure for the purpose of complying with the law
·         Disclosure of a crime, wrong or misdeed
·         If disclosure is in the confidant’s interests
·         Disclosure in the public interest (for national security, public health, and things of this gravity)


Remedies awarded in breach of confidence cases include:
·         Injunction to prevent either;
a)      the information being revealed in the first place, or
b)      further misuse of the information.
·         Monetary Remedies (either an account of profits or damages)
·         Formation of a constructive trust (where a defendant acquires some property by use of the confidential information, it may be held on trust for the plaintiff)
·         Orders for delivery-up and for destruction

If you are concerned that your confidential information is at risk, or if you are unsure what you should or shouldn’t tell your next employer about your current work, make an appointment to speak with us about your rights.


Phone: 1300 334 566



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