Who can I share it with? - OneNDA Provision: Difference between revisions

Who can I share it with? - OneNDA Provision (view source)

Revision as of 10:01, 18 May 2023

2,098 bytes added , 18 May 2023

no edit summary

Amwelladmin

Bureaucrats, Interface administrators, Administrators

83,351

edits

@@ Line 37: / Line 37: @@
 Also, it rather points up the misconception of contractually requiring such a notice or a back-to-back arrangement in the first place. For ''failing to give the necessary notice'' is not the thing: no consequences flow intrinsically from that. What matters is that the delegated recipient keeps the information to itself. If it ''does'', it doesn’t matter that no-one told it it had to. If it does ''not'', it doesn’t matter that everyone did.
+===Reasonableness===
+You may see people try to squeeze a [[reasonableness]] standard into their obligation to control delegates: Recipient must take reasonable steps to ensure the delegates do not disclose the information. The consequence of this would be that if the Recipient ''did'' take all reasonable steps: delivered tiresome lectures to all its delegates, ensured they acknowledged them in writing; even extracted a binding legal commitment from them not to break confidence — then it could not be held liable for naughty behaviour by a rogue delegate.
+The JC is, generally, a fan of the “[[commercially reasonable]]” standard, but not in this case. This is to do with reasons of contractual [[privity]], basic allocation of risk and the fundamental principle of contract: there is no value judgment about the quality of your behaviour here. The law of contract cares only about outcome. Contract is about doing, not doing your best.
+Firstly, the risk argument. Whoever holds this information, if proprietary information gets out, the discloser loses. There is no point where the ''recipient'' loses, directly, from improper disclosure. Therefore our starting position is this: discloser has this secret sauce, and before it discloses it, the risk is fully contained: whether or not it ever gets out is entirely within the discloser’s control. Now, once the discloser lets a recipient have it, under an NDA, it becomes partly ''outside'' the discloser’s control. To the extent it does, it becomes entirely ''within'' the control of the recipient, who doesn’t ''have'' to share it with anyone. It can, and inevitably will — to employees, lawyers, financing partners — but still, the recipient always has a choice about who and when. Once it does so, the recipient then cedes some control, to the delegate.
+Remember where we started: I had full control of this special information. Even if you do your utmost to keep the information confidential, if it still leaks out, I lose. You don’t. And the law of contract cares not about how hard you tried, but how well you did.
 ==General==