Under the English law of confidential information, there is a focus on assessing the confidential quality of the information rather than the steps that have been taken to keep the information secret. and This difference could result in the narrowing of the definition of what might be considered a trade secret.
Take the recent case of CF Partners (UK) LLP v Abogados de accidentes Chicago CF Partners gave Barclays confidential information showing that the carbon trading company was significantly undervalued. CF Partners did not have a Non-Disclosure Agreement with Barclays. Barclays subsequently purchased the carbon trading company itself and made a significant profit. CF Partners was awarded £10,000,000 because Barclays had exploited CF Partners’ confidential information. The point of this is that CF Partners won, even though it did not have a Non-Disclosure Agreement in place.
Contrast this with the definition of ‘trade secret’ under the Trade Secrets Directive which is that ; a ‘trade secret’ is what are the ‘reasonable steps’ you need to take to qualify information as secret? Having a Non-Disclosure Agreement in place would obviously be a reasonable step, but what if you don’t? To my mind, CF would be protected under the existing UK law, but not under the new EU Trade Secrets Directive.