A business’ customer database can be of such great importance that it effectively is the business. But how can a business protect such a vital asset, particularly in circumstances where technological advances make it increasingly possible for others to tap into a business’ resources?
In the recent case of Warm Zones v Sophie Thurley, it was alleged that a former employee, Ms Thurley, had in conjunction with a former colleague of hers copied and/or disclosed customer databases to a competitor during her employment with Warm Zones. Although Warm Zones is a not-for profit entity, it operates in a highly competitive arena and has ‘competitive and proprietary information that would be valuable to any competitor’.
To ascertain precisely what, if any, damage had been done and to retrieve any confidential information held by Ms Thurley, Warm Zones sought an interim injunction that would compel Ms Thurley to relinquish her personal computer for review and copying. Such an ‘imaging and inspection order’ obviously bears the risk of intrusive and invasive consequences. The High Court therefore gave careful consideration to the impact that granting or refusing it would have on the parties. ‘The overriding consideration for the Court is to choose the course that will involve the least risk of injustice if it ultimately transpires that the chosen course is wrong’.
On balance, the Court granted the injunction. Warm Zones provided ‘cogent evidence’, including emails which appeared to demonstrate that Ms Thurley had sent confidential information to a competitor, which meant that the Court could have a high degree of assurance about the strength of Warm Zones’ claim. In contrast, the Judge viewed Ms Thurley’s evidence explaining her behaviour with a ‘high degree of scepticism’.
Whilst personal privacy is highly respected, this case demonstrates that, in the appropriate circumstances, the Courts are prepared to prioritise business needs. Clearly, keeping good records of correspondence was paramount to Warm Zones’ successful application. Of further assistance was that Ms Thurley had an express confidentiality clause in her contract of employment which the Judge took into consideration when considering her actions. Whilst all businesses would no doubt hope to avoid any confidentiality spats with employees both current and former, having your contractual ducks in a row and ensuring that the obligations on employees are clear certainly strengthens your position.