This definition has been around since the UK had become signatory to TRIPS in 1995. The UK law was required to implement the had to oblige to the requirements set by the convention. As this definition was already in place, nevertheless It is important analyse to look at the current interpretation at common law, identifying how ‘trade secrets’ are protected. and how it This analysis will highlight any decides what is confidential and what isn’t and compare if there will be any impact the Directive will have on the common law.
Protection of confidential information under Common law
There is no definition of a trade secret in the UK. The law relating to confidential information has been developed through case law. An obligation of confidence may arise via contract through express or implied terms or it can arise independently of contract on an equitable basis as per Coco vs Clark.
4.0 Trade secrets protection under contract law
4.1The juridical basis for the law of confidence is predicated on a duty of good faith and it is generally considered that the law derives from the English legal concept of Equity.
An example of this can be seen through the law of employment, where the protection for the employer while the employee remains employed is fairly extensive as per Prince Albert vs Strange. Post-employment however, implied protection is more limited.
- In the leading case of Faccenda Chicken vs Fowler Neil LJ observed that an implied duty of confidentiality will be owed by an employee after their employment has ended, but this implied duty is “more restricted in its scope” than an employee’s duty of fidelity that subsists during employment.
- More recently, in the case of Lansing Linde Ltd vs Kerr, Staughton L.J was asked a question about how trade secrets differ from confidential information. To which he stated, “It must be information used in a trade or business, and that the owner must limit the dissemination of it or at least not encourage or permit widespread publication.”
- In this present case, it clear that subsequent courts have still found it difficult to draw a line between trade secrets and other confidential information. Therefore, one can argue that the Directive (EC) 2016/943 will have an impact on the law of action of breach of confidence, as the introduction of a uniform definition of “trade secret” will help provide more consistency and clarity in the EU. This and hence will improve legal certainty in relation to trade secrets for companies operating within the EU.