Author

Hazel Carty

Standpoint

Argues that although recent cases in the area refer to Coco as the leading case, in fact the courts have developed an ‘extra-Coco analysis’ under the Coco headings, which Carty calls a ‘merit-based’ approach. The conduct of the claimant is judged to see if they took adequate steps to protect their information; the information is judged to see if it is worthy of protection; and the conduct of the defendant is judged; only defendants who have misbehaved are in breach.

On this basis, Carty argues that Douglas (HL) missed an opportunity to recognize this and re-formulate the law to make this merit-based approach more explicit (and to stop considering Coco as the leading authority), and that it was wrongly decided in not giving sufficient weight to the intrinsic merit of the information (which was trivial).

Source

‘An Analysis of the Modern Action for Breach of Commercial Confidence: When is Protection Merited?’ [2008] IPQ 416–455