The protection of confidential information in the human rights era: two aspects

Legal context: The Human Rights Act has had an obvious impact on the law ofbreach of confidence as it applies to private information. Itsinfluence on the law of confidence as it applies to commercialinformation has been subtle, but nevertheless significant. Key points: Confidentiality is a relative rather than an absolute concept.Whether information is in the public domain or retains the necessaryquality of confidence is a question of degree which dependson the circumstances of the case, and in particular the natureof the information. A compilation of information may be confidentialeven if the individual elements are in the public domain. Itis a defence to a claim for breach of confidence that disclosureof the information would be in the public interest whether theclam is based on an express contractual, an implied contractualor an equitable obligation. The balance of authority favoursthe view that an express contractual obligation carries greaterweight when balancing parties’ Convention rights thanan implied contractual or equitable obligation, but it is difficultto see why this should be so. The real difference between contractualand equitable obligations is that it is possible by contractto prevent the disclosure of information that is not confidential. Practical significance: The law continues to evolve. As matters stand parties are welladvised to seek contractual protection for their confidentialinformation.     

Mediation of Intellectual Property disputes

Legal and practical context. Mediation can bring real benefitsin avoiding protracted and costly IP litigation and is suitablefor most IP disputes except where a matter of principle, suchas construction of patent claims, requires resolution. Key points. Mediation may be used at any time to resolve a dispute.The courts can give robust encouragement by means of costs sanctionsand ADR orders but cannot compel the use of mediation. The Proceedsof Crime Act 2002 may apply to some mediated settlements, particularlythose involving trade mark and copyright infringement disputes. Practical significance. The courts and the Patent Office areactively seeking ways to encourage mediation of IP disputesand the Patent Office has announced the setting up of a mediationscheme.