Reviewing a confidentiality clause

A confidentiality clause defines the information one party gives the other, restricts what the recipient may do with it, and sets how long the restriction lasts. It appears in almost every commercial contract and does different work in each: protecting a supplier's pricing, a customer's data, a licensor's know-how or a party's negotiating position. Its scope decides what is protected; its exceptions decide what is not; and certain disclosures cannot be prevented by any clause. I review the clause from whichever side instructs me and return it marked up with a written explanation of what it protects, what it permits, and the changes the other side will accept, for a fixed fee of £495 in three working days.

Who this is for

Businesses in England and Wales negotiating the confidentiality provisions of a supply, services, licensing, consultancy, joint venture or outsourcing agreement, whether as the party disclosing commercial information or the party receiving it. Both parties are businesses; a stand-alone non-disclosure agreement is reviewed or drafted under the NDA service.

What to look for in a confidentiality clause

What is protected: the definition of confidential information

The definition decides everything else. A definition covering all information disclosed by either party, however recorded, protects the disclosing party but leaves the recipient unsure what it may repeat; a definition limited to information marked confidential protects only what someone remembered to mark. The review drafts a definition by reference to the nature of the information (technical, commercial, financial, customer and personnel data) and its circumstances, with a marking requirement for information disclosed orally or in demonstrations, and a period within which oral disclosures must be confirmed in writing.

Permitted use, permitted disclosure and the recipient's people

The clause should say what the recipient may use the information for, the purpose of the contract and nothing else, and to whom it may disclose it: employees, group companies, professional advisers, financiers and sub-contractors who need to know and are bound by equivalent obligations. The review checks that the permitted purpose matches the contract, that the list of permitted recipients covers those the receiving party will in fact use, and that the receiving party is responsible for its recipients' compliance.

The exceptions: public domain, prior knowledge and independent development

Information that is already public, that the recipient already held, that it receives from a third party free of obligation, or that it develops independently is excluded from the obligation, and the review checks that each exception is present, that the public domain exception does not apply where the information became public through the recipient's own breach, that prior knowledge and independent development must be shown by written records, and that a compilation of public information can still be confidential as a compilation.

The disclosures no clause can prevent

A confidentiality clause cannot stop disclosures the law protects: a worker's protected disclosure under Part IVA of the Employment Rights Act 1996, a disclosure required by law, a court or a regulator, and, under section 17 of the Victims and Prisoners Act 2024, a victim's disclosure of criminal conduct to the police, regulators, lawyers and support services. Section 24 of the Employment Rights Act 2025 provides for contractual duties of confidentiality relating to harassment and discrimination to be void, and is being phased in. The review checks that the clause carves those disclosures out expressly, since a clause that purports to prohibit them is unenforceable to that extent and can attract regulatory criticism.

Duration, survival and the trade secret standard

The obligation should last for a stated period after the contract ends, longer for trade secrets and technical know-how than for commercial information, and the review checks the period against the information's useful life. Under the Trade Secrets (Enforcement, etc.) Regulations 2018 a trade secret is information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret, and the confidentiality clause is one of those steps, so a clause with a short duration can undermine the disclosing party's ability to protect a trade secret at all. The review asks for trade secrets to be protected for as long as they remain secret.

Remedies, return of information and the clause in practice

The clause should provide for return or destruction of the information on request and on termination, with a right to retain copies required by law or held in routine backups, and should acknowledge that damages may be an inadequate remedy so that an injunction can be sought without argument. The review checks the interaction with the limitation of liability, since breach of confidentiality is commonly carved out of the cap, with the data protection provisions, since personal data is governed by the UK GDPR and the Data Protection Act 2018 whether or not it is confidential, and with the Freedom of Information Act 2000 where the other party is a public authority. A claim for breach must be brought within six years under section 5 of the Limitation Act 1980.

What it costs

Standard review, £495. Marked-up document and a written explanation of the changes. Three working days.

Buying online forms the engagement on payment. The scope is what the contract review page describes, you accept the Terms of Service at checkout, and I email you within four working hours to get started. If you would rather ask something first, email me.

What you get

• Your own contract returned with my amendments as tracked changes, plus a clean version with every change accepted, ready to send to the other side
• Comments in the document where a point needs explaining
• A written explanation of what I have changed and why, by email or as an attachment if it is lengthy, marking the points I would hold firm on and the ones that are negotiable
• A view on what is normal market practice and what is the other side pushing their luck
• One round of follow-up questions by email, included

What is not included

• Negotiating directly with the other side, which I quote separately once I know who is on the other side. Where the other side is willing to share a live document, I can work in that document directly
• Drafting a replacement contract from scratch
• Advice on the law of any jurisdiction other than England and Wales
• Tax, accounting or regulatory advice
• Disputes about a contract that is already signed

Questions I am often asked

The clause says all information disclosed is confidential. Is that too wide?

For the recipient, it makes every conversation a potential breach; for the disclosing party, it protects information nobody thought to mark. The review drafts a definition by the nature and circumstances of the information, with a marking and confirmation procedure for oral disclosures, which both sides can work with.

Can the clause stop our staff reporting wrongdoing?

A clause cannot prevent a protected disclosure under the whistleblowing provisions of the Employment Rights Act 1996, a disclosure required by law or a regulator, or a victim's disclosure of criminal conduct. The review carves those out expressly so that the clause is enforceable for what it can properly cover.

How long should the obligation last?

For commercial information, a period after the contract ends that reflects its useful life; for trade secrets and know-how, for as long as they remain secret, because a short period can undermine trade secret protection altogether. The review sets the periods by category of information.

Related guidance and services

• Contract review, £495, the service this page describes
• Terms and conditions drafting, £995
• Data protection agreements and privacy terms, £795
• Mutual NDA before a partnership discussion
• Reviewing an intellectual property assignment clause

This page is general guidance for businesses in England and Wales, not advice on your own circumstances. Last reviewed: September 2026. Email geoffrey@caesar.co.uk.