protecting business information - topic 10 Flashcards
Tarasoff v University of California
Student (Tarasoff) who had a classmate go to the university council and confess he wanted to kill tarasoff - she was stalked and killed. parents went to court to sue University however they argued that due to privacy they could not expose information. Judge said no and said this statement “ privacy ends where the public danger begins” - meaning there are limits to the privacy
Privacy Act 1993
implements in NZ international standards relating to the handling of personal information / personal data
- existing legal remedies have difficulty when applied to protecting ordinary / common place facts about individuals (eg where they shop, consumer preferences etc)
- the privacy act catches all such info (unlike the equitable action for confidence and the tort of privacy)
Principle 1 of PA
an organization can only collect personal information relevant to its relative purposes
Principle 2 of PA
personal information must be collected from the subject directly
Principle 3 of PA
subjects must be told info about them is being collected by whom, why and who it is to be shared with
Principle 4 of PA
personal info must not be collected by unfair or intrusive means
Principle 5 of PA
personal info must be held securely
Principle 6 of PA
individuals must be able to access their personal information
Principle 7 of PA
individuals must have the right to request correction of their personal info
Principle 8 of PA
an organizatoin must ensure that person info is up to date and accurate before using it
Principle 9 of PA
personal info must not be keopt for unnecessary longer than it needs to be
Principle 10 of PA
personal info can only be used for the purpose it is collected for
Principle 11 of PA
personal info held by an org must not be disclosed unless this was a purpose it was collected for
Principle 12 of PA
an organization cannot assign the same uniqe identifier that another organisation has assigned to the individual
who is excluded from the privacy act 1993?
the news median are excluded from the principles for ‘news activities’ although they must comply with principle 6 and 7
parliament, courts and tribunals are excluded
personal info collected / held by an individual for their “personal family or household affairs” s56
unsolicited electronic messages act 2007 (spam act)
an unsolicited electronic message is essentially electronic junk mail
section 3 of the Privacy Act 1993
sets out the purposes of the Privacy Act 1993
what is the first purpose of the unsolicited electronic messages act 2007 (spam act)?
prohibit unsolicited commercial electronic messages with a New Zealand link from being sent in order to;
- promote a safer and more secure environment for the use of use of information and communications technologies in new zealand and;
- reduce impediments to the uptake and effective use of information and communication technologies by businesses and the wider community in NZ and;
- reduce the costs to businesses and the wider community that arise from unsolicited commercial electronic messages
express consent =
a direct signal from recipient that they consent to sending the message
inferred consent =
consent arising from the conduct and the business and the other relationships of the sender and the recipient
deemed consent =
the act says demmed consent (s4) if:
- your email address is published In your business capacity, ie on your consumers website; and
- no statement that you do not want to receive unsolicited electronic messages at that electronic address; and
- the message sent is relevant to the business or to the role of the person in a business
s10
accurate sender information
s11
functional unsubscribe facility
s13
address - harvesting software and harvested - address lists must not be used
Breaches of the UEMA
can result in;
- formal warning issued / undertaking obtained
- infringement notice issued (up to $2000 penalty to be paid)
- court action taken (performance injunction / restraining injunction / damages / pecuniary penalties (up to $200,000 individual up to 500,000 (organisation)
what are the 3 ways to protect trade secrets ?
equitable breach of confidence
contractual breach of confidence
trade secret under crimes act 1961
prince albert v Strange
Covered by the equitable breach of confidence
Prince alberts and queen make sketches, strange shows them to world
Mr strange owns the sketches bc he got them from br brown… not a matter of ownership as mr strange owns sketches but its also not a matter of breach of contract - however it is a matter of good faith - mr strange was not acting in good faith
Breach of confidence
Saltmn Engineering co ltd v Campbell engineering (1948)
Concerns production of leather punches
There is no contract between saltman and campbell but campbell sells punches
Saltman wants to sue - campbell is acting in bad faith as this information is confidential - plans were deemed to be confidential info - campbell either knew this or should have known this and using the plans to make a profit is acting in bad faith
Coco v AN Clark (1969)
moped
AN clark copied design however coco did not win
Seager v Copydex
copydex made v similar design, however court argued it mustve been an accident as copydex wasn’t smart enough to actually come up with the design
Are trade secrets automatically protected?
no, because a trade secret must still pass the confidentiality criteria
just bc its a trade secret doesn’t mean it confidential
What happens if you unitentionally find out information or are eavesdropping?
you are now sworn to secrecy
What does the “headstart” or “springboard” doctrine mean?
At what point can u start using the information? There is confidentiality until the other competitors bring the product out - so you cant put it put first due to confidentiality
Aquaculture corporation v Green Mussel co ltd
Exact temperature was not known and was confidential
Defendant green muscle company found out the information - they were not allowed to use the temp until competitors had worked out the temp themselves
What are the obligations during the course of employment?
- equitable obligation of confidence
- fiduciariy duties depending on the position and status (higher the position more likely to owe fiduciary duties)
- implied contractual term to service the employer faithfully and not disclose confidential information obtained in the course of employment
What are restraints of trade clauses
limits what an employee can do for a certain amount of time following the termination of their employment
must cover a certain location and industry and must be reasonable
What are the elements for equitable breach of confidence?
- the information must have necessary quality of confidence
- the information must have been communicated in circumstances importing an obligation of confidence
- there must be unauthorised use of the information to the detriment of the party communicating it
What is an Express term of contract ?
- specific term that is written
an express term of contract is where if you are. negotiating with another business, you m ay want to have an express term in the contract made that no private information will be spoken of outside of the neogitation - may want to make it part of the contract
AG (attorney general) v Blake
George Blake was a spy on a spy contract. As part of his employment contract he had signed the official secrets act 1911 - there is a decloration that you will not disclose anything about your work as a spy. He became a Russian spy and worked as a double agent however got caught after 10 years and was put into prison. He escapes and flees to sovient union and there he writes a book about his spying - called no other choice. Publishing contract and released in 1989. British government sues him for breach of contractual obligations of confidence and they were successful - blake had to give all profits back to British government - breach of contract
what is an implied term of contract ?
the court will imply a term into the contract in order to give it commercial effect
the most common form of implied terms occurs in employment contracts
- note, a contractual obligation of confidence is only enforceable against the other party to the contract (and not a third party)
Factors to consider whether information is a trade secret:
1) extent to which information is known outside of the business
2) extent to which information is known by employees
3) extent of measures owners take to protect information
4) value of the information to the owner / competitor
5) the amount of money / effort to develop the information
6) ease or difficulty by which the information could be acquired or duplicatedby others
Defences to a claim of breach of confidence
public knowledge
independent discovery
disclosure in the public interest
Protected Disclosures act 2000
purpose of this act is to encourage people to report serious wrongdoing in their workplace by providing protection for employees who want to ‘blow their whistle’
what are the remedies for breach of confidence ?
injunction
damages - punitive or exemplary damages
account of profits received
order for the delivery up of material
