Many of your businesses will rely on clauses in your terms and conditions or in service level agreements or in employment contracts, to protect the unauthorised use or disclosure by others of your confidential commercial information.
Where the public interest may play a part in your business dealings – because you are working on a contract using public funds, or where you are contracting with a public sector client, - your ability to keep information confidential is affected by the balance to be struck between the public interest in allowing a business to properly and legitimately protect its commercial confidentiality and the public interest in transparency.
In Regina (Veolia ES Nottinghamshire Limited) v Nottinghamshire County Council, Times, November 9, 2010, an elector, Mr Dowen, asked that Nottinghamshire County Council make available to him certain documents relating to a local waste management contract. Nottinghamshire CC had decided to do so. The waste company, Veolia, had objected and appealed.
The Court of Appeal agreed the appeal in part. Yes, there was a public interest in transparency, particularly where the use of public money was concerned. However, there was also a strong public interest in enabling the confidentiality of valuable commercial information. On the facts, and particularly because when it disclosed the documents to Mr Dowen, Nottinghamshire CC did not limit the uses he could put the information to, there was no reason to justify the Council’s disclosure to him.
Article 1 of the First Protocol of the European Convention on Human Rights entitled every legal person to the peaceful enjoyment of his possessions. The Court decided that there was no reason why confidential information could not also be regarded as a ‘possession’ for these purposes. Each individual case needed to be considered on its own facts to weigh the balance between competing interests. Here the balance lay with non-disclosure.
If you are proposing to contract with local government or other public enterprises and you do not wish your confidential commercial information to become public domain, please ensure that you take good advice on the ways in which your interests may be protected.
