The Extension of the Criminal Law to Protecting Confidential Commercial Information: Comments on the Issues and the Cyber-Context

Confidential commercial information is an increasingly valuable commodity and commercial resource which may be inadequately protected by the traditional approach of English criminal law against misappropriation. This paper reviews the nature of the problem and some of the relevant legal issues. Notwithstanding that a global reform of the law in this area is probably not on the cards, the position advocated here is that the direct application of the criminal law is indeed an appropriate vehicle through which to deter the misappropriation of confidential commercial information. However, the scope of any new law must be carefully circumscribed - if it is drawn too wide, the law runs the danger of acting outside of the articulated rationale for criminal liability and endangering other legitimate interests (particularly in the cyberspace context). If it is drawn too narrow, any new law may very well prove ineffective. It is suggested that there are a number of difficulties, both doctrinal and practical, that must be resolved prior to enacting new legislation in this area. Some observations are presented upon the more critical issues for those interested in the implications of law reform in this area for cyberspace.