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I had worked in a large company, though in a very entry level. There was a great deal of bureaucracy and politics. Management was very adamant about keeping confidential information safe and securely disposing of it when necessary. Despite my attempts, including asking various people, no one defined for me what was considered confidential information. For example, I was given a task to clean out a desk full of paper and wasn’t sure what was considered confidential and had to put it all in the (overflowing) secure disposal bin. Can companies do this? Make you sign agreements not to disclose any confidential information (either during or after employment with them) but never define what they consider confidential?

  • Yes, they can. You should generally assume that everything is confidential unless you're told otherwise. – phoog May 17 '16 at 23:10
  • Many employers have you sign a non-disclosure agreement - effectively stopping you from communicating any details about what you do on the job. However, your question feels unclear to me. – Zizouz212 May 17 '16 at 23:37
  • @phoog so you can't disclose the position you worked with in the company or anything you did there? – dipdash May 17 '16 at 23:37
  • @dipdash if you want to be perfectly safe, no. If you want to use a little common sense and make your own determination and decide what the risk is that anyone would actually pursue you for disclosing that information, then you probably could talk about some of the things you did there. – phoog May 17 '16 at 23:47
  • @phoog I was thinking of things like how the company is competitors with Microsoft, so I'm not even sure I can say statements such "we used MS Word or Windows" when applying for another position. Though they never actually specified if even these programs are "confidential". – dipdash May 18 '16 at 6:28
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I cannot speak specifically for Canada but in Australia "breach of confidence" is a tort at common law so unless there is a Canadian (Federal or Provincial) statute it is probably the same.

For breach of confidence to be established the following elements must be established:

  1. The information must be secret or confidential - it must not be public knowledge. It must also be identified with precision and not just in general terms. A company cannot say "Every document we give you is confidential" - that is not precise enough.

  2. It must be given in circumstances where the recipient knew or should have known that it was confidential.

  3. It must be an unauthorised use to the detriment of the person communicating it.

Effectively, this is the definition of confidential information.

Even if these elements are proved there are defences available:

  • Public interest - of particular relevance to governments but is generally applicable. For example, disclosing that a corporation was breaching environmental law is not a breach of confidence

  • General iniquity - where it would be unjust to treat the disclosure as a breach of confidence.

If you sign a non-disclosure agreement then as well as the tort, disclosure may be a breach of contract - what the contract actually says is relevant here. It may define confidential information in a different way than the tort does, usually by removing the third element, however, it would still need to be clear or the NDA would be void for uncertainty.

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