Confidential information is often one of the most valuable assets of a business.
However, in some circumstances it may need to be disclosed to others – for example as part of a discussion around a commercial venture, or with potential investors.
If confidential information needs to be shared outside of your organisation, it is important that measures are put in place to protect it, so that it remains confidential.
A common way of protecting confidential information is by using a non-disclosure agreement (NDA).
5 points to consider when thinking about an NDA
- Do you need to disclose your information at all? The surest way to protect your confidential information is simply not to reveal it to others! Whatever your NDA might say, once the confidential information ‘cat is out of the bag’, you won’t be able to get it back in. An NDA gives you important rights and protections, but you should always consider whether you really need to disclose your confidential information at all. If you do, you should consider limiting the disclosure to that which is strictly necessary at that particular time.
- Purpose: You should be very clear about the purpose for which you are disclosing confidential information, and that the recipient of the information agrees not to use the confidential information other than for that narrow purpose. Failing to do this runs the risk that – even if the recipient keeps your information confidential – it uses your information to its own ends, and to your disadvantage.
- Scope of information: The NDA needs to be clear on what ‘confidential information’ will include and what it excludes. Even once the NDA is in place, you should consider ensuring that the information that you share is clearly marked as ‘confidential’ in order that there can be no doubt about the confidentiality.
- Termination: The NDA should specify what will happen to your confidential information when the parties decide to end their discussions, or once the ‘purpose’ for the recipient having the confidential information has come to an end. This may include the return or destruction of any disclosed information (and you will need to think about what this means in the context of any information held electronically).
- Patents: Where you are considering an application for a patent, confidentiality can be particularly important. Once your idea becomes public, your ability to secure a patent is compromised, so ensuring that confidentiality is protected by an NDA can be critically important.
In summary, your confidential information is a very valuable part of your business, but in some circumstances it will be in your interests to share that information with others. You are best protected by ensuring that the information that you share is limited to that which is absolutely necessary and – for that information that you do share – ensuring that it is protected by a robust NDA.
Ed Rimmell is a partner at award-winning regional law firm VWV. Ed can be contacted on 0117 314 5232 or at firstname.lastname@example.org.