Confidentiality—conditions, compliance and consequences*

Abstract

With advancements in technology driving faster and easier flows of information, it has never been more important for companies to understand how the law can assist them in protecting their valuable information and what their obligations are in dealing with the confidential information of others. This is of particular relevance in the petroleum industry, where the possession of data and information is usually crucial to a company’s decision about whether to proceed with a project, and where information can provide a significant commercial advantage. This paper will examine the legal framework regulating the use and protection of confidential information, from an Australian perspective. The paper will consider related issues such as:

1. When should information should be treated as confidential?

2. When is a confidentiality agreement required between parties?

3. What needs to be considered when entering into a confidentiality agreement?

4. What is the position at law in the event that there is no written confidentiality agreement between parties?

5. What restrictions apply to the purposes for which confidential information can be used?

Finally, the paper will consider the legal consequences of breach of confidentiality and suggest practical ways that companies can minimise their risk of being exposed to these consequences.