Can a party decide that something that wasn't initially considered confidential, now is?

Question

If I have signed a confidentiality agreement with an employer or client, can they provide me with information that would generally be considered non-confidential but then change their mind and require me to keep it confidential?

I had asked the question here as more of an aside, but would really like to focus the answer question here. Bob had worked for McDonald's through Agent. Bob signed a Confidentiality Agreement with Agent. Months latter Agent tells Bob "our client list is confidential. You can't add to any future job applications that you worked at McDonald's or have their name on your LinkedIn profile".

Is Agent allowed to retroactively do that?

Generally speaking things that are public knowledge aren't protected from such agreements and if they were public knowledge in the past it doesn't really make sense to say they now aren't.

Answer 1

can they provide me with information that would generally be considered non-confidential but then change their mind and require me to keep it confidential?

Generally speaking, no. That is tantamount to amending a readily binding contract, which cannot be done unilaterally. I'm assuming the intermediary (i.e., the staffing agency) changed its mind sometime after Bob accepted the agreement.

Absent Bob's acceptance of the amendment, only exceptional and/or unforeseeable circumstances might warrant enforcement of the agent's belated change of mind. In other words, principles of equity might override the binding terms of a contract. Here, the possibility that reading Bob's resume might prompt other intermediaries to offer staffing services to McDonald's is neither exceptional nor unforeseeable, whence the agent has no equitable grounds for belatedly prohibiting Bob to disclose that he works for McDonald's.

If anything, prohibiting Bob to disclose where he performed work would be inequitable from the standpoint that it tends to render Bob's resume meaningless. Indeed, stating that Bob worked for a renowned entity is more reputable than saying that he worked for basically some nobody.

Answer 2

"Confidential Information" is whatever the Confidentiality Agreement defines it as

If the agreement doesn't define it then what does it mean? A good confidentially agreement will be explicit about what is confidential, at least, it should identify classes of things that are confidential. Client lists can be confidential or not - if you aren't told, how would you know?

There is an equitable remedy of breach of confidence and the court may look to the definition that uses:

The most generally accepted statement of a breach of confidence claim, by Megarry J in Coco v Clark (Engineers) Ltd [1969] RPC 41 at 47-48; 1A IPR 587, is that the following matters must be established:

• First, that the information has the necessary quality of confidence.
• Secondly, that the information was imparted to the defendant in circumstances importing an obligation of confidence.
• Thirdly, that the defendant used the information without the authority of the plaintiff and to its detriment.

The "necessary quality of confidence" requires that the plaintiff takes the necessary and prudent steps to keep it secret; public information is never confidential¹, however, that alone is insufficient. Not every secret attracts protection, it must also by its nature warrant confidentiality. The fact that the plaintiff has a business relationship with McDonalds is unlikely to meet that requirement while the specific contract terms and even the name of the plaintiff's point of contact with McDonalds might. A list of clients is not ipso facto a "client list" worthy of confidentiality.

How the plaintiff disclosed the information must make it clear that the information is confidential. Whether this happened depends on:

• the nature of the information,
• the purpose of the transfer of the information,
• the limits the confider placed on the use of the information.

Where the information that McDonalds was a customer was simply transferred with no restriction, its hard to see that second matter has been established, particularly if the receiver disclosed the information before the retroactive attempt to make it confidential.

Finally, what damage is caused by the disclosure that McDonalds is a customer?

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¹ There is a divergence between English and Australian law on if subsequent public disclosure (e.g. in a patent application) releases the receiver of the information from its obligation of confidence - in England it does, in Australia it doesn't. Both jurisdictions agree that if the information was public before the disclosure happened then it never was confidential information.