2 December 2016

Confidential information and trade secrets

In the UK, the common law protects information that has the necessary quality of confidence and is disclosed in circumstances imparting an obligation of confidence. Consequently Brexit should have a limited impact if any.

The Trade Secrets Directive was formally adopted by the Council of the European Union on May 27th 2016 and came into force on July 5th 2016, and the UK has until June 9th 2018 to transpose the Directive into national law.  So we can expect this to come into force in the UK before exit, though whether the UK Government will implement the Directive in a narrowed form we cannot yet know.  The Directive’s purpose is to harmonise EU law on trade secrets, with a broad definition of ‘trade secret’ as information that is secret, has commercial value because it is secret, and has been subject to reasonable steps by the person lawfully in control of it to keep it secret.  As a result information currently protected by the law of confidentiality in the UK may fall within the scope of this Directive.  However, given the UK law today it is unlikely this Directive will make any harmful change to the  situation as understood today.

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