Confidentiality Clauses: The "Pinky Promise" With A Backbone

As published July 26, 2021 for Risk Management Counsel of Canada

Childhood was simple. You trusted your best friend with confidential information simply by swearing a "pinky promise". In settlements, a "pinky promise" will rarely do the trick. Instead, a confidentiality clause is a more appropriate tool to stop the parties from sharing confidential information regarding a settlement.

But what happens when a confidentiality clause is breached? As a child, you could simply give your friend the "silent treatment". In settlements, the stakes are higher and there are often very good reasons for wanting information to be held in confidence. It is important for lawyers to stay mindful to possible issues and to know the remedies available when a confidentiality clause is breached.