Confidential information can now be better protected

Article date: 16.05.11

* For the first time, businesses may be able to force alleged wrongdoers to provide information, or answers to questions, that incriminate them in disputes involving misuse of the business’s confidential information, following a recent legal decision.

People giving evidence in disputes usually have the right to refuse to answer questions or give information that might incriminate them. However, this ‘privilege against self-incrimination’ does not apply if the dispute is about an alleged breach of someone’s intellectual property rights (IPR). Traditionally it was thought this only applied to disputes about rights such as patents, trade marks, copyright and designs. It was not previously thought that confidential information was within the definition of IPR for this purpose, but a recent case has decided that can be.

The case involved a News of the World journalist in alleged phone-hacking cases brought by ex-TV sports pundit Andy Gray and comic actor Steve Coogan. The journalist was refusing to give evidence in court, or provide information about others whose phones had allegedly been hacked, claiming privilege against self-incrimination. The court said that voicemails in the celebrities’ mobile phones were confidential information, commercial and technical, and could therefore be IPR. So the journalist should not be allowed to rely on the privilege against self-incrimination rules that would otherwise apply.

More usually, confidential information also includes more information such as customer databases, supplier information, design blueprints, copy on a business’s website, its literature, business plans, pricing strategies and any other information that a business would not want others - such as competitors or suppliers - to see.

Recommendation
Businesses whose confidential information is commercial or technical and is misused should take advice on whether the information is within the definition of IPR.

Case ref: Andrew Gray and Stephen Coogan v News Group Newspapers Ltd and Glenn Michael Mulcaire [2011] EWHC 349

* This is not legal advice; it is intended to provide information of general interest about current legal issues.