Keeping it confidential: Getting the legal basics of confidentiality agreements right

  • Podcast

    05 June 2024

Keeping it confidential: Getting the legal basics of confidentiality agreements right  Desktop Image Keeping it confidential: Getting the legal basics of confidentiality agreements right  Mobile Image



In this episode, Richard Wells, a Partner in our Corporate and Commercial team, and Senior Solicitor, Hannah Snelling, discuss the legal basics of confidentiality agreements; talking listeners through various considerations that are needed when drafting or reviewing this fundamental type of commercial agreement.

[00:27] Richard and Hannah begin the episode noting the importance of confidentiality agreements in commerce; how they preserve the confidentiality of information, define its scope, and set out the rules for its use and disclosure.

[01:58] Hannah explains what she looks for when reviewing a confidentiality agreement, highlighting the importance of defining the parties accurately and the difference between a one-way and a two-way confidentiality agreement.

[03:16] They then consider different approaches to defining confidential information, the risks associated with marking information as confidential, and the importance of defining the purpose of confidential information.  Richard notes how it can be equally as important to consider what hasn’t been defined as confidential information as what has been; what lies inside versus outside the box so to speak.

[05:56] Hannah discusses the main exclusions to the obligations attaching to confidential information, including information that is already in the public domain, information in the prior lawful possession or control of the recipient, and information received from a third party.

[08:47] Richard and Hannah then examine the rules around the use and disclosure of confidential information once a recipient is in possession of it. Richard highlights the importance of the agreements defined “purpose” in the use of confidential information, noting an inherent tension as to the width of that definition between recipient and provider.

[10:46] Hannah mentions certain security measures that a recipient should apply to the confidential information and they also discuss the importance of considering the term and duration of confidentiality agreements.

[12:53] The episode is rounded out with Richard and Hannah considering some specific acknowledgements typically included in confidentiality agreements dealing with intellectual property rights, remedies for breach of the agreement and governing law.

Information in this episode is accurate as at the date of recording, 23 May 2024.

Please contact Richard Wells or our Corporate and Commercial team if you need legal advice and guidance on any of the topics discussed in the episode.

Please get in touch to receive an episode transcript. Please don’t forget to rate, review or follow MinterEllisonRuddWatts wherever you get your podcasts. You can also sign up to receive technology updates via your inbox here.