Canadian Lawyer InHouse

JULY/AUGUST 2018 38 INHOUSE data is something that newer companies, such as those that are technology based, may not be prioritizing. "For innovative compa- nies, that may sound like a buzz kill. You want to be out bragging about your product. But, in reality, to sufficiently protect confi- dential information in an innovative busi- ness, you need to be doing an audit of what is protectable," says Simpson, who specializes in intellectual property law. The audits are essential tools in the event that civil litigation is ever initiated. As well, "trade secrets" are not just the equivalent of unique formulas, he says. "It can seem amorphous. But it can also be business pro - cesses. The way to protect that is through internal processes and specific agreements with contractors and third parties," he adds. While online attacks either from individ- uals or state-sponsored entities are legiti- mate issues, Simpson notes that, sometimes, confidential business information can be disclosed in a much more low-tech setting. "For startup businesses, a chief executive may go to a conference and talk about the company's product. Even if it is a friendly audience, it is not longer confidential. It may be valuable, but it is no longer protectable," says Simpson. If there is a specific wrongdoing that resulted in the disclosure of IP or a trade secret, that could lead to a strong civil suit if the misconduct all occurred in Canada. If the attack originated elsewhere, a com - pany's legal options may be limited. "You have no meaningful remedies," says Barry Sookman, a senior partner at McCar- thy Tétrault LLP in Toronto and an intel- lectual property lawyer. "China and Rus- sia are huge culprits. But it is very hard to prove. It is also a very expensive process," he adds. Ahmad agrees that legal action is an up- hill battle. "Your remedies are almost non- existent. The company with the informa- tion is usually not the one who steals it. You can start litigation, but there will be juris- diction and timeline issues," he says. Even if it is from a position of self-inter- est, there have been positive developments recently in that countries such as India and China are taking more active steps to try to crack down on the theft of IP and trade se- crets, says Kosa. "They used to make more money from counterfeiting. But now they are developing their own IP," he explains. However, in cases where a company has been attacked online and is subject to a de - mand for money to ensure that its proprie- tary information is not widely disseminated, Kosa says, it is actually a better strategy to pay the ransom. "They don't have any use for it to hold it hostage. They may not even really know what it is. You can pay or you can decide the secret is no longer worth having. But pay - ing actually works. They want to create an incentive to pay so they will return what has been stolen," he says. IH © 2018 Thomson Reuters Canada Limited 00249PD-90991-NK INTRODUCING DATA PRIVACY ADVISOR. The only Q&A platform that answers your most pressing data privacy research questions. Only Data Privacy Advisor enables you to better understand data privacy complexities with unrivalled Practical Law™ know-how, global legal and regulatory content, and artificial intelligence from Thomson Reuters and IBM Watson.® Deepen your expertise and proceed more confidently. thomsonreuters.ca/data-privacy-advisor When data privacy authority falls on you, confidence matters.

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