Directing equity's conscience : structuring liability for the illicit acquisition of confidential commercial information

This dissertation considers a narrow issue within the law of intellectual property that has been characterised as a problematic lacuna in the law of confidence. That is, whether direct liability is available through the composite jurisdiction in confidence in respect of the illicit acquisition of confidential commercial information in circumstances where liability is not otherwise available on an independent basis; that is, where the claim would otherwise fail as the act of acquisition is itself lawful. The resolution of this issue is relevant to the legal treatment of what is popularly termed ‘corporate espionage’. The argument is structured in four sections. Sections one and two consider the phenomenon of the illicit acquisition of confidential commercial information, its complex nature and function in the contemporary commercial context, and, the application of foundational legal principles drawn from property, tort and the developing English law of restitution to the issue identified. A comparative treatment of the issue is also presented in respect of the American law of trade secrets which offers protection against appropriation ‘by improper means’; a model which has received some credible academic support for partial-incorporation into English law. The third section considers the application of conventional confidence doctrine to the issue identified in the form of the sui generis action for breach of confidence. The argument considers whether an obligation of confidentiality might be implied or constructed between the parties, and, some older authority seemingly supportive of the imposition of liability through a conduct-based test of ‘surreptitious acquisition’. Consideration is also given to recent developments in the protection of personal privacy. These various approaches are rejected as inadequate, unsuitable, or insufficiently established to provide effective legal treatment of the problem. In the last section, the discussion proceeds from the proposition that Article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, incorporating aspects of the Paris Convention for the Protection of Industrial Property, may be used as a basis for re-orienting the English law of confidence on the point.