Infringing acts; and infringing goods (Article 4)

Currently in the UK, disclosure of confidential information will be excused if it is justified in the public interest. Whilst the court does apply the maxim “there is no confidentiality in iniquity”, it is generally quite narrow in construing it, especially where disclosures are made in an unnecessarily wide manner or to inappropriate audiences.

The Directive therefore arguably appears to widen the defence available when compared to the position under UK law, which again is likely to require clarification by the CJ.

8.0 Employee protection

The current UK approach developed in Faccenda Chicken Ltd v Abogados de accidentes Los Angeles [1987] Ch 117 prevents former employees from using or disclosing information which is of a sufficiently high degree of confidentiality so as to amount to a trade secret. The obligation does not extend to all information obtained by the former employee during employment and in particular may not cover information which is only confidential in the sense that disclosure would amount to a breach of good faith.

There is an argument that “use of skills honestly acquired in the normal course of employment” implies a wider ban on enforcement than under Faccenda Chicken, making it unclear whether Article 1(2a) of the directive requires implementation in the UK.

In any event, references to the Court of Justice of the European Union (CJ) are to be expected, in particular on the meaning of “experience and skills honestly required”.

Recital 27(a) of the directive says that the directive is not “intended to affect the possibility of concluding non-competition agreements between employers and employees, in accordance with the applicable law”. This leaves issues in relation to restrictive covenants and non-compete clauses up to national law and the applicability of Article 1(2a) will be subject to such restrictive convents and non-compete clauses.

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