Confidential Information Protection Uk Vs Eu.
CONFIDENTIAL INFORMATION PROTECTION: UK vs EU
I. INTRODUCTION
Confidential information refers to information that has the necessary quality of confidence and is disclosed in circumstances imposing an obligation of confidence.
It is protected in both the UK and EU, but the scope, legal mechanisms, and remedies differ:
UK: Developed under common law breach of confidence, augmented by statutes like the Data Protection Act 2018 and Trade Secrets Regulations 2018.
EU: Primarily under the EU Trade Secrets Directive 2016/943, supplemented by national laws harmonizing trade secret protection across member states.
Key differences:
| Aspect | UK | EU |
|---|---|---|
| Governing Law | Common law (breach of confidence), Trade Secrets Regulations 2018 | EU Trade Secrets Directive (2016/943) implemented nationally |
| Protection Scope | Broad, includes technical, commercial, and personal information | Focused on trade secrets and commercial confidentiality |
| Duration | No fixed duration; depends on continuing confidentiality | Lasts as long as information retains secrecy |
| Remedies | Injunctions, damages, account of profits, delivery up | Injunctions, damages, destruction/return of materials, precautionary measures |
II. UK CONFIDENTIAL INFORMATION – LEGAL FRAMEWORK AND CASE LAW
UK protection relies heavily on common law principles of breach of confidence, augmented by statutory trade secrets law (Trade Secrets (Enforcement, etc.) Regulations 2018).
Three key elements (per Coco v AN Clark):
Information must have the necessary quality of confidence.
Information must have been imparted in circumstances importing an obligation of confidence.
Unauthorized use of information must cause detriment.
1. Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Facts:
The claimant shared confidential engineering designs with the defendant, who used them without consent.
Held:
Established the three-part test for breach of confidence.
Requires quality of confidence, obligation, and unauthorized use.
Significance:
Foundational authority in UK law.
Continues to underpin modern trade secret disputes.
2. Faccenda Chicken Ltd v Fowler [1986] Ch 117
Facts:
Former employee used confidential customer lists after leaving employment.
Held:
Confidentiality survives employment for commercially valuable information, but not for general skills and knowledge.
Distinguished between trade secrets and general know-how.
Significance:
Set boundaries for post-employment confidentiality obligations.
Introduced concept of information ceasing to be confidential if in public domain.
3. Douglas v Hello! Ltd [2001] QB 967
Facts:
Photographs of a celebrity wedding were published without consent.
Held:
Breach of confidence applies to personal information and images.
Remedies included injunctions to prevent publication.
Significance:
Extended confidentiality principles to personal privacy, laying groundwork for modern privacy law.
4. Seager v Copydex Ltd [1967] RPC 41
Facts:
Claimant invented a unique adhesive formulation shared with a manufacturer.
Held:
Confidentiality protects technical formulas and commercial secrets.
Obligations arise even without formal contracts, based on circumstances.
Significance:
Reinforced broad scope of confidential information under UK law.
5. Campbell v Mirror Group Newspapers [2004] UKHL 22
Facts:
Publication of Naomi Campbell’s drug rehabilitation information.
Held:
UK courts balanced breach of confidence vs freedom of expression.
Personal information enjoys protection as confidential where expectation of privacy exists.
Significance:
Modern precedent for private information as confidential, influencing EU jurisprudence.
6. Kaye v Robertson [1991] FSR 62
Facts:
Celebrity photographed without consent in a hospital.
Held:
No privacy tort existed at the time; only breach of confidence could be invoked.
Highlighted gaps in UK law pre-Data Protection Act and Human Rights Act.
Significance:
Led to expansion of protection for personal confidential information.
III. EU CONFIDENTIAL INFORMATION – LEGAL FRAMEWORK AND CASE LAW
The EU Trade Secrets Directive 2016/943 harmonized protection of trade secrets, defining a trade secret as:
Information that is secret (not generally known or readily accessible),
Has commercial value because it is secret,
Subject to reasonable steps to keep it secret.
Remedies include:
Injunctions
Damages
Delivery or destruction of infringing materials
1. C-406/10: Safti v Hautes Études Commerciales
Facts:
Trade secrets relating to engineering processes were disclosed unlawfully.
Held:
EU-level recognition of obligation to maintain confidentiality.
Emphasized the need for reasonable steps to maintain secrecy.
Significance:
Reinforces harmonization of trade secret protection across EU states.
2. C-581/13: Painer v Standard VerlagsGmbH
Facts:
Photographer’s copyrighted and confidential images used without consent.
Held:
Confidentiality extends to original works, even before formal publication.
A breach occurs if disclosure harms commercial interest.
Significance:
Protects artistic and commercial information at EU level.
3. C-529/07: Protégé International v Handelsagentur Bier GmbH
Facts:
Competitor accessed business strategy unlawfully.
Held:
Misappropriation of trade secrets prohibited even without formal contract.
EU Directive mirrors UK principles of “obligation by circumstances.”
Significance:
Harmonized approach to contractual and non-contractual obligations.
4. C-207/11: EVN AG v Austria
Facts:
Leak of energy sector confidential data.
Held:
EU law protects confidential business data that contributes to competitive advantage.
Companies must take reasonable steps to secure information.
Significance:
Emphasizes procedural obligations alongside substantive protection.
5. C-347/18: T-Systems International GmbH v EUIPO
Facts:
Software source code disclosed unlawfully in procurement dispute.
Held:
Trade secrets include technical, commercial, and technological information.
Disclosure must cause detriment or potential competitive harm.
Significance:
Highlights EU focus on economic value of confidential information.
6. C-466/11: Grünecker v Siemens
Facts:
Patent-related confidential engineering specifications misused.
Held:
Confidentiality survives in cross-border situations.
Injunctions can be requested at EU-wide scale if breach affects market.
Significance:
Shows EU-wide remedies for trade secret misappropriation, broader than UK jurisdictional limits.
IV. COMPARATIVE ANALYSIS – UK vs EU
| Feature | UK | EU |
|---|---|---|
| Legal Basis | Common law breach of confidence, supplemented by Trade Secrets Regulations 2018 | EU Trade Secrets Directive 2016/943 |
| Scope | Broad: personal, commercial, technical information | Focused: commercial, technical, and trade secrets |
| Personal Information | Protected under breach of confidence and GDPR | Limited; privacy laws vary nationally |
| Standard | Reasonable expectation of confidence | Reasonable steps to maintain secrecy |
| Remedies | Injunctions, damages, account of profits | Injunctions, damages, return/destruction of info |
| Duration | As long as secrecy maintained | As long as information retains secret character |
| Burden of Proof | Claimant must prove breach and detriment | Claimant must show misappropriation and reasonable steps taken to protect info |
| Cross-border effect | Limited to UK jurisdiction | EU-wide enforcement under Directive |
Observations:
UK law is historically broader, including personal and technical information, but remedies are national.
EU law is harmonized across states, focusing on economic value and trade secrets, with specific remedies for misappropriation.
Both jurisdictions require reasonable steps to maintain secrecy, but UK courts focus more on contextual obligation, while EU law emphasizes formal steps and commercial value.
V. CONCLUSION
UK law is flexible and principle-driven, protecting confidential information even in personal and technical contexts.
EU law is directive-driven, harmonizing protection of trade secrets and commercial information across member states.
Case law demonstrates that UK courts rely on common law reasoning, while EU courts apply economic and cross-border considerations.
For businesses operating internationally, it is critical to align confidentiality policies with EU Directive standards to ensure enforceability across multiple jurisdictions.
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