What kinds of information are legally protected as confidential under Singapore law?
Confidential information protected under Singapore law extends beyond commercial trade secrets to cover a broad range of information shared in circumstances importing an obligation of confidence, including business information, personal information shared in a professional relationship, and information disclosed during negotiations or litigation.
The information needs to have the necessary quality of confidence, meaning it is not trivial or already public knowledge, and needs to have been imparted in circumstances that a reasonable person would recognise as importing an obligation of confidence, whether through an express agreement or the surrounding context of the disclosure.
Examples of protectable confidential information include business strategies and financial information shared during commercial negotiations, client information held by professionals such as lawyers or accountants, and technical or operational information shared between businesses in the course of a commercial relationship.
Because confidential information protection under the common law breach of confidence action is broader in scope than the more specific category of trade secrets, covering a wider range of sensitive information beyond purely commercial secrets, businesses and individuals handling any type of sensitive information shared in confidence should understand this protection extends to their situation even where the information might not fit a narrower definition of a trade secret. Before meeting counsel, review what to bring to your first legal consultation so the lawyer can assess the matter efficiently.
What must be proven to establish a breach of confidence?
The claimant must show that the information had the necessary quality of confidence, meaning it was not already public knowledge or trivial in nature, and had some genuine value or sensitivity that justified treating it as confidential in the first place.
The claimant must show that the information was communicated in circumstances importing an obligation of confidence, which can arise through an express confidentiality agreement, or through the nature of the relationship and context in which the information was shared, such as a professional relationship where confidentiality would reasonably be expected.
The claimant must show unauthorised use or disclosure of the information by the recipient, going beyond what was permitted under the circumstances in which the information was originally shared, whether through express agreement or the reasonable understanding both parties had at the time of disclosure.
Because these three elements need to be established with reference to the specific facts of how information was shared and subsequently used, claimants considering a breach of confidence claim should carefully document the circumstances of the original disclosure and the specific unauthorised use they allege occurred, and should seek legal advice to properly assess the strength of their position. If you decide to seek representation, this guide to choosing a lawyer in Singapore can help you compare your options.
How does confidentiality protection differ from a formal trade secret or registered IP right?
Confidentiality protection under the common law breach of confidence action applies broadly to any information meeting the necessary quality of confidence test, without requiring the information to meet the more specific commercial value threshold sometimes associated with the narrower concept of a trade secret.
Unlike registered intellectual property rights such as trade marks, patents or registered designs, confidentiality protection does not require any application, examination or registration process, arising instead directly from the circumstances in which information was shared and the recipient’s resulting obligations.
Confidentiality protection can apply to information that would not qualify for any other form of intellectual property protection, such as personal information, or business information that does not rise to the level of a commercially valuable trade secret but was still shared in circumstances of confidence, making it a broader and more flexible form of protection in some respects.
Because confidentiality protection operates on different principles from registered intellectual property rights, relying on the specific facts of disclosure rather than a formal registration record, businesses and individuals relying on this protection should focus on properly documenting the confidential nature of the information and the circumstances of its disclosure, rather than assuming a formal registration process is available or necessary. You may also want to check whether initial legal consultations are free before contacting a firm.
What should a confidentiality or non-disclosure agreement include?
A confidentiality or non-disclosure agreement should clearly define what information is considered confidential, ideally with sufficient specificity to avoid later disputes about scope, while remaining broad enough to genuinely cover the range of sensitive information the parties intend to protect.
The agreement should specify the permitted purpose for which the confidential information may be used, restricting the recipient from using the information for any purpose beyond what was agreed, and should address how long the confidentiality obligations continue, including whether they survive the end of any broader business relationship between the parties.
The agreement should address practical matters such as the recipient’s obligations regarding the security of the confidential information, any restrictions on further disclosure to third parties, such as the recipient’s own employees or advisers, and the recipient’s obligations to return or destroy confidential materials at the end of the relationship or upon request.
Because a well drafted confidentiality agreement provides much stronger practical protection than relying solely on the more general implied obligations that can arise from the circumstances of disclosure, businesses sharing sensitive information should use a properly drafted agreement tailored to their specific situation, and should seek legal advice particularly for higher value or higher risk disclosures. Our overview of lawyer costs in Singapore can help you prepare questions about fees.
Can an employee be restricted from using confidential information after leaving a role?
Yes, an employee’s obligation not to misuse their former employer’s genuinely confidential information generally continues after employment ends, reflecting an implied obligation recognised under Singapore law that survives the termination of the employment relationship, at least for information that genuinely warrants ongoing protection.
The scope of this continuing obligation is generally narrower than the confidentiality obligations that applied during employment, and courts have generally distinguished between genuinely confidential business information warranting ongoing protection and the general skills, knowledge and experience an employee legitimately develops and can carry with them to future roles.
An express confidentiality clause in the employment contract, clearly setting out what categories of information remain confidential after the employment relationship ends, provides much clearer protection and a stronger basis for enforcement than relying solely on the more limited implied post-employment obligation.
Because the boundary between protectable confidential information and an employee’s general skills and knowledge can be genuinely difficult to draw in specific cases, employers concerned about protecting sensitive information after an employee’s departure should ensure their employment contracts include clear confidentiality provisions, and should seek legal advice promptly if a departing or former employee is suspected of misusing genuinely confidential information.
What remedies are available if confidential information is misused?
An injunction restraining the defendant from further using or disclosing the confidential information is a primary remedy, reflecting the claimant’s urgent interest in preventing further harm from ongoing misuse, particularly given that information already disclosed cannot be made confidential again.
Damages, compensating for the loss suffered as a result of the breach, or an account of profits, requiring the defendant to hand over profits made from misusing the information, are available as financial remedies, with the appropriate choice depending on the specific facts and which measure better reflects the claimant’s actual loss or the defendant’s unjust gain.
Where the confidential information has been used to create materials, products or documents, the court can order delivery up or destruction of these materials, preventing the defendant from continuing to benefit from the misused information even once an injunction is in place.
Because the practical effectiveness of these remedies, particularly an injunction, depends significantly on how quickly the claimant acts after discovering the misuse, businesses and individuals who discover their confidential information has been misused should seek legal advice promptly to assess the available remedies and, where appropriate, pursue emergency relief without delay.
Does information shared during litigation or negotiation remain protected as confidential?
Information exchanged during settlement negotiations is generally protected from being used or disclosed for other purposes, reflecting the important public policy interest in encouraging parties to negotiate openly toward a resolution without fear that concessions made during negotiation will be used against them if a settlement is not reached.
Information disclosed during formal litigation, such as through the discovery or disclosure process, is generally subject to an implied undertaking restricting its use to the specific litigation for which it was disclosed, meaning a party generally cannot use documents obtained through this process for an unrelated purpose without the court’s permission or the other party’s consent.
Where confidential commercial information is shared as part of a due diligence process ahead of a potential transaction, such as a merger or acquisition, this information generally remains subject to confidentiality obligations, particularly where the parties have entered into a specific confidentiality agreement governing the due diligence process.
Because these various contexts each involve their own specific rules and expectations regarding the ongoing confidentiality of shared information, parties involved in litigation, negotiation or due diligence should seek legal advice on the specific obligations that apply to information they receive or disclose in these contexts, rather than assuming a uniform rule applies across all situations.
What defences may be raised against a breach of confidence claim?
A defendant can argue that the information in question was not actually confidential, either because it was already in the public domain at the relevant time, or because it was too trivial or general to meet the necessary quality of confidence required for protection.
A defendant can argue that the information was not imparted in circumstances importing an obligation of confidence, such as where there was no express agreement and the surrounding circumstances would not have led a reasonable person to understand the information was being shared in confidence.
A defendant can argue that their use or disclosure of the information was actually authorised, whether through express consent or because it fell within the scope of what was reasonably contemplated when the information was originally shared, or can raise a public interest defence in limited circumstances involving genuine wrongdoing that justified disclosure.
Because the availability and strength of these defences depend heavily on the specific facts of how the information was treated and shared, defendants facing a breach of confidence claim should seek legal advice promptly to properly assess which defences may genuinely apply to their specific situation, rather than assuming a general defence will be available without a careful review of the facts.
