The Information Age and the knowledge economy are by no means new. Yet trends associated with the knowledge economy are continuing to intensify and become a normal facet of life for a growing number of individuals, businesses, and institutions. Legally speaking, this creates a tension between ensuring that the confidential information and data assets that form the lifeblood of many organizations are legally protectable, and the lawful circulation of expertise, knowledge workers, and information that falls within the public domain.
I started this blog because there is surprisingly little publicly accessible information available in Canada regarding rights to confidential information and trade secrecy written from a legal perspective. This blog will identify and discuss emerging issues in this area. It will also seek to provide a nuts-and-bolts account of how legal rights to use and control information do, and do not, operate.
To this end, I hope to provide a practical sense for how issues relating to confidential information and trade secrecy may be encountered “in the wild.” The Canadian (and Commonwealth) analogue to American trade secrecy law is a breach of confidence claim. Yet issues relating to confidentiality or the control of privately held information are routinely encountered in disputes over departing employees and business partners, restrictive covenants relating to non-disclosure or non-competition, and unfair competition. Breach of confidence can also be encountered in a more malevolent form, such as deliberate industrial espionage or as part of a range of more malevolent “intentional” torts such as conspiracy to injure and inducing breach of contract.
Further, within the legal profession the topic tends to be siloed, notably between employment law, unfair competition and litigation on the one hand and technology law, intellectual property, and transactions relating to the ownership or sale of informational assets on the other. From a practical perspective, questions relating to personal information and privacy law regulatory regimes are very much in the mix as well. There is an old saying that there are no legal rights without legal remedies, and I tend to approach this topic in the first instance from the perspective of what rights are enforceable through a court process. Nonetheless, I personally hold the conviction that these different silos have formed around different facets of essentially the same topic or, in the case of privacy law, an interrelated one.
Nothing published on CanadianInformationLaw.com is intended to be relied upon as legal advice. If you require legal advice or assistance, please seek the services of a licensed legal services provider in your jurisdiction.