I am often asked to either draft or review non-disclosure agreements. Within a standard agreement I will typically come across or include a clause on the standard of care required for safeguarding confidential information.
The clause might be worded as follows:
Confidential information is handled, at minimum, in the same way that the recipient would handle their own confidential information [or “in no event less than reasonable degree of care”, or in “strict confidence”, or at the “highest standard of care]; neither party shall be liable for the inadvertent or accidental disclosure of confidential information if such disclosure occurs despite the exercise of such care.
The language noted above is not appropriate in all circumstances, but can be modified to suit the custom needs of the disclosure and recipient.
I was recently asked about the steps required in safeguarding information. For the safeguarding of information stored electronically, please refer to my post on data security.
With respect to the safeguarding of information stored in physical files, I spent some time considering the recommendations of the Privacy Commission in response to complaints made against businesses on their handling of confidential information, to come up with the following list of recommendations:
Consider taking the steps noted above (among other commercially reasonable measures) to protect the confidential information that is entrusted to you.
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