Co-working spaces are hubs of knowledge transfer and innovation, attracting business owners that are idea makers. The essential structure of a co-working space lends itself to the sharing of information: open plan, flexible use and contact with other like-minded businesses. Although this essence is what attracts many business owners to use a co-working space in the first place, it may also repel business owners who are interested in protecting their business’ confidential information and trade secrets. Below, we explain some practical tips on how you can protect your intellectual property in a co-working space.

What is Confidential Information?

Of course, this risk shouldn’t be the reason why you choose not to work in a co-working space. However, understanding the law of confidentiality and being aware of the transition of information should be top of mind if your business’ intellectual property is of value.

Australian common law sets out the general elements required to claim confidentiality which briefly summarised include:

  1. The information claimed to be confidential can be specified;
  2. The information has the quality of confidence; and
  3. The information is received in circumstances where a duty of confidence arises.

If someone were to use the information without your consent and to your detriment, you might be able to receive remedies such as an injunction, account of profits or damages.

Co-working Spaces and the Transfer of Information

For users of co-working spaces, “keeping secrets” or ensuring confidential information relating to your business remains confidential can be tricky. As described above, you will need to identify the confidential information and receive the information where there is an obligation for the other party to keep the information secret. In a co-working space this can prove to be difficult if, for example, an unknown third party (i.e. fellow co-working space user) overheard a conversation where you imparted confidential information. If you have no association with this third party, to what extent will they be required to keep the information they just overheard confidential?

What Does the Law Say?

If there is no direct relationship between two parties, it will be difficult to enforce a duty of confidence. Generally, a person who has disclosed confidential information in a public space will need to accept the risk that a third party may receive the information.

There are a few reasons why the duty of confidence does not extend to such instances, including:

  • The form of communication is not intended to be secret;
  • Third parties are not active in receiving the information and cannot refuse to receive the information; and
  • The people involved in the conversation may not be aware that another party has heard and received the confidential information.

Protecting Your Intellectual Property in a Co-Working Space

You should take some practical steps to ensure that working in a co-working space doesn’t lead to lasting damage: 

  1. If you intend to discuss confidential topics, hire a private room in the co-working space if one is available;
  2. Don’t discuss confidential topics in the open;
  3. Don’t leave confidential information – either about your business or other parties – lying around in the co-working space;
  4. If you happen to have information that is confidential, mark it as confidential; and
  5. Most importantly, you should check the terms and conditions of the co-working space. Although the law doesn’t automatically create a duty of confidentiality in the circumstances described above, if the co-working space has terms and conditions requiring each user of the co-working space to keep information confidential, you have a contractual basis to rely on if anyone were to misuse your information

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If you work or plan to work in a co-working space, check the terms and conditions and if no confidentiality clause is included, request one to be inserted. Questions? Get in touch with our specialist startup lawyers on 1300 544 755. 

Kristine Biason

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