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23/07/2013

Brought to a stand-still: interim injunctions and confidential information by Tom Ohta
Tom Ohta

Europe’s largest automobile manufacturer, Volkswagen, has secured an interim injunction preventing the publication of certain parts of an academic paper about a weakness in an algorithm used in its car immobilisers.[1] This case highlights how the law of confidence and injunctive relief can be used to protect commercially sensitive materials and information which cannot otherwise be protected by intellectual property rights such as patents.

Interim court proceedings were initiated when a number of academic experts in cryptography and their employers (academic institutions) sought to publish certain parts of an academic paper concerning the technology behind car immobilisers.

The academic paper was based on a review of a software programme obtained from “murky” origins namely, via the internet, and which contained an encrypted algorithm used in car immobilisers fitted in Volkswagen cars. Having identified a weakness in the algorithm, the academics intended to publish their findings and the algorithm in a paper for use at a forthcoming conference.

In granting the interim injunction restraining publication of certain parts of the academic paper, the court accepted that there were sufficient grounds to justify interfering with the academics’ right to freedom of speech. It was more than merely arguable that the information was confidential, that it had been imparted in circumstances creating an obligation of confidence, and that there had been unauthorised use of that information. Furthermore, the court expressed a concern that if published, the information could be used by sophisticated criminal gangs to facilitate car theft.

There have been a raft of recent cases on the law of confidence which can be used to protect both commercial and personal information. This case highlights how injunctions can be a powerful tool where the disclosing party becomes aware of the recipient’s intentions to publish confidential information before it is published. Courts can grant interim injunctions (such as in this case) which parties can obtain at very short notice to prevent disclosure pending a full trial, and final injunctions to prevent further misuse of the information or to prevent a threatened breach of confidence.

In practical terms, companies seeking to protect their confidential information are advised to ensure that such information is only disclosed in circumstances importing an obligation of confidence (ideally, through a written contract), and taking practical steps to maintain confidentiality, such as ensuring that access to such information is restricted, keeping a contemporaneous written record of developments and ensuring that employee contracts contain clear and appropriate confidentiality provisions.

[1] (1) Volkswagen Aktiengesellschaft (2) Thales Communications & Security S.A.S. v Garcia & 4 Ors (2013) before Birss J in June 2013


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