What is a trade secret? (part two)

Our last blog talked about the theory of what a trade secret is from a legal perspective, so in this blog, we wanted to give you some more practical advice.

What Happens in Practice

Non Disclosure Agreements (NDAs) are readily available on internet searches and are frequently used effectively by businesses on a day to day basis for simple matters without reverting to lawyers. This is a commercial decision, but once the issues become a little more complex, it is wise to seek some reassurance.

Other relevant company policies to protect confidential information

A business should also address confidentiality issues in other applicable policies, such as:

1. Social media policies for staff and the business. When staff are posting deals, promotions and events, your confidential information may be leaked. The speed at which social media allows information to be made public needs addressing to avoid secrets getting out. At the very least a company should have an approval system for the release of confidential information
2. Electronic communications policies Emails are exchanged everyday between businesses and increasingly they are being used as evidence of contracts. Recent case law has shown a contract can be formed by an exchange of emails if the name of the sender is on an email. The court said the presence of a person’s name on an email is a signature even if the computer automatically generates the name. Therefore, a signature is not required in writing
3. Policies governing remote and travelling staff Using a Wi-Fi signal which does not have a password can expose your trade secrets through an unsecured network
4. Codes of conduct and conflicts of interest policies Making sure fellow directors and staff are well trained on what matters they can readily discuss both in the public domain and within the wider organisation.

Prepare a misappropriation action plan

A business should have an action plan in place in case any of its valuable confidential information, including a trade secret, is stolen, used or disclosed in some way, or is in any way threatened. If a business acts quickly, it is likely to be able to eliminate, or at least minimise, the damage that any such leak may cause to it. The plan should be readily accessible to all responsible employees and included in any relevant training programmes so that all concerned know what to do if a leak, threatened or actual, arises. It may also be appropriate to carry out dry runs of the action plan.

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