Perspectives from Intellectual Property, Labour, Competition and Corporate Law
Edited by Marilyn Pittard, Ann L. Monotti and John Duns
Chapter 20: Devices to restrain competition and protect discoveries and enforcement: workplace policies and confidentiality
The misappropriation of trade secrets by employees is hardly a modern phenomenon. Some of the early English case law shows that employees were as inclined to misappropriate their employer’s confidential information as they are now. The only thing which has changed over the years is that technology has made life both easier and, ironically, more difficult for the employee. Instead of laboriously transcribing documents containing formulae or customer lists, the employee can now download them to a memory stick, or, if he is extremely unwise, simply forward them to his home email address. In doing so, of course, he immediately creates a forensic ‘fingerprint’ of his activity making apprehension and the attachment of liability a great deal easier. There are two main ways of dealing with the problem of trade secret misappropriation by insiders. One is by legal action, the determination of liability and the imposition of the appropriate legal remedies – injunction, the order to deliver up and so on. At the other end of the spectrum, however, and as an essentially prophylactic tool, there is the application of policies and protocols to highlight duties and to educate employees about their obligations. It is this latter element with which this chapter is concerned.
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