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OPINION: Unlocking The Powers Of Non-Disclosure Agreements In Redefining Businesses, Innovations                                

Oluwadamilola Future Fashida

Introduction :

The right to privacy of a person is enshrined in the 1999 Constitution of the Federal Republic of Nigeria (as amended) which guarantees the privacy of citizens, their homes, phone conversations and telegraphic conversations and so on.

However, bearing in mind that privacy in the Constitution is a Fundamental Human Right, there is a difference between privacy as a fundamental right and confidentiality between persons especially in commercial relationships.

Confidentiality in a business transaction or commercial world is very important and should not be underestimated because sometimes, the balance of success in a business or partnership may lie on the strength of confidentiality most especially with respect to protecting the original ideas and trade secrets of the business.

One may ask, ‘what secret is there to keep?’, ‘Individuals may produce and sell the same thing, so what could one possible know that the other do not?’ However, people fail to ask questions like ‘is the business plan, marketing strategies and acumen the same?’ 

The business world has evolved so much that protecting sensitive business information, trade secrets and the originality of business ideas is becoming increasingly important. With the speedy pace of technological advancements, if confidentiality in businesses and innovations are no big deals, the originality in an idea may be eroded and this may invariably affect the financial status of the business. This is where Non-Disclosure Agreements (NDAs) plays a pivotal role in the progress of Businesses and its transactions.

WHAT ARE NON-DISCLOSURE AGREEMENTS (NDAs)?

Non-Disclosure Agreements (NDAs) are legally binding secret-keeping contracts between legal entities. They are also called confidentiality agreements. It is a Legal document used to prevent trade secrets and confidential information from being shared amongst persons (natural or artificial) who are not privy to the transaction.

In simple terms, they are legal papers that protect trade secrets and business ideas from being stolen. Most importantly, NDAs spells out what is a secret, what is not a secret, how to use the secret, for how long the secret can be kept and what sanctions would be conferred to the person in breach of the secret.

WHAT PURPOSE DO NDAs SERVE?

In the commercial world, NDAs serve as a guide in helping people share important trade secrets, business strategies without fear of a third party stealing or leaking the said secrets to competitors.  

The ideas, recipes or patterns than make your business original to you may need NDAs to preserve its originality. Divulging information is important when seeking investment, finding potential business partners, securing new clients or hiring employees to fill in sensitive positions. In a bid to protect the person sharing and the person receiving the information, it is very important to execute NDAs.

HOW DO NDAs REDEFINE BUSINESSES AND INNOVATIONS?

Jeremy Enns in one of his reads ‘What Hasn’t Been Done Before?’ opined that it is almost impossible to say something has not been done before. According to him, it might  not be completely original. In fact, it will probably be composed entirely of borrowed parts and ideas. But all that matters is that at least some part of a creative and marketing processes should feel fresh.

The ideas, business plans and trade secret of Entrepreneurs and business moguls are almost never original but very much unique. It is the uniqueness and creativity that most times possesses value and should be protected.

NDAs do not just protect sensitive business information from falling in the wrong hands, they also protect the financial progress of a business or company. New business ideas and strategies are perceived to be unique and its level of uniqueness equates the value, which may also have an effect on the financial progress and development on the company or start-ups.  Consequently, when the uniqueness of a company is not protected, it leaves the appreciating value of the company vulnerable.

The Intellectual Property, Small and Midsize Enterprises (SMEs) and Economic strength of Nigeria has gone weak so much that in 2019 The Nigerian Copyrights Commission (NCC) disclosed that Nigeria loses about $3billion annually to piracy.

It is pertinent to be aware that the absence of NDAs in businesses may affect the Intellectual property of an individual who may have worked so hard. When an intellectual property or trade secret of individuals and businesses are affected it tells on the creative and economic growth of a country.

WHAT KIND OF INFORMATION CAN BE PROTECTED?

Like I stated earlier, the powers of NDAs should not be underestimated. In Professions like Medicine, Law and so on, professionals are mandated to protect information told to them in confidentiality and the consequences of breaching the confidentiality may lead to serious legal issues, attract heavy sanctions and damages on the professionals in breach.

Please note that not all information can be protected by NDAs for instance, public records cannot be protected and information about an illegal act or omission cannot also be protected.

WHAT REMEDIES ARE THERE IN CASE OF A BREACH?

Usually, NDAs spell out the sanctions or penalties if there is a breach but in most cases the enforcement of such sanctions and penalties are enforced through a Court action.

Hence, when there is a breach by a party to a Non-Disclosure Agreement, the aggrieved party can seek redress in court and also restrain the violator from making any further disclosures and claim heavy damages. The violator can also be sued depending on the circumstances of the breach. NON-DISCLOSURE AGREEMENTS FOSTERS HEALTHY TRANSACTIONS BETWEEN PERSONS IN A COMMERCIAL RELATIOSHIP. 

Oluwadamilola Future Fashida, ESQ; Legal Associate in B.O OGUNMODEDE & CO with specialty in Commercial & Coporate Law, Property Law and Health Law.                                    

DISCLAIMER: This article is not aimed at defaming or degrading any Individual, Profession or Association, the content of the article is purely based on educative and informative grounds and not a legal advice. 

Gmail:futurefashida@gmail.com||I.G: @future_fashida||LinkedIn: Future Fashida (esq) || X: @fash_future

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