Commercial in Confidence, what the Label Does and Doesn't Do

"Commercial in confidence" is a label, not a legal term of art. When a business marks a document or email "commercial in confidence", it is signalling that the material is sensitive and should not be shared beyond a limited group without permission. The label is useful, but on its own it creates no legal protection. Protection comes from what sits underneath the label: information that genuinely qualifies as confidential, and a legal basis, usually a contract or the equitable duty of confidence, for keeping it secret.

This article explains what the label does and does not achieve, the kinds of information that can be protected, how protection arises with or without a written agreement, the questions a court asks in a breach of confidence claim, and where the label really counts in government tenders and freedom of information requests.

What the label is and what it signals

"Commercial in confidence", often shortened to CIC, appears on tender documents, pricing schedules, board papers, draft contracts and emails. It tells the recipient three things: treat this material as private, use it only for the purpose for which it was given, and do not pass it on. It is also a practical record. If a dispute later arises, a clearly marked document helps show that the recipient knew the material was confidential when they received it.

But marking a document does not make it confidential in law. Courts look at the character of the information and the circumstances in which it was shared, not the stamp on the page. A marketing agency can print "commercial in confidence" across a template that is widely used in its industry, and the stamp will not protect it. An unmarked spreadsheet of pricing and launch strategy can be protected because of what it contains. The label is evidence of intent. It is not the source of the right.

What counts as confidential information

Confidential information is any information or document a business wants to keep private and that is not already public knowledge. In a commercial context it commonly includes:

Trade secrets: recipes, formulas, manufacturing processes and business methods
Unannounced products: new product designs, prototypes and launch plans
Client information: customer lists, buying histories and contact databases
Commercial data: pricing structures, profit margins, costings and financial statements
Intellectual property: source code, designs and other proprietary material
Business strategy: marketing plans, tender strategies and proposed partnerships

Two features matter most. First, the information must be identifiable. A business should be able to point to the specific items it says were confidential, rather than to a general body of knowledge. Second, it must not be public knowledge. If the information is generally known or readily ascertainable, it cannot be confidential, no matter how it is labelled. In Filby v TEG Live Pty Ltd [2023] NSWCA 320, the NSW Court of Appeal upheld a finding that a claim failed where the information conveyed was inherently unspecific and amounted to a very general and inchoate idea. A vague description of a concept is not the same as identifiable confidential information.

How protection arises: contracts and the equitable duty

There are two main routes to protecting confidential information, and they can operate together:

Written agreement: A non-disclosure agreement (NDA) or a confidentiality clause in a larger contract is the most reliable route, because it defines the ground rules before information changes hands. A well-drafted confidentiality clause typically covers: the parties; a specific definition of what counts as confidential information; the obligations on the recipient and any exceptions; the permitted scope of use; and the consequences of breach, including remedies. It should also carve out information that is already public, independently developed, or required to be disclosed by law. A one-way clause protects only the disclosing party's information, while a mutual clause protects both sides where each will share sensitive material.
Equitable duty of confidence: Even without a written agreement, the law can impose a duty of confidence. The duty arises where information is imparted in circumstances that import an obligation to keep it secret, for example during a meeting about a potential partnership in which one side reveals commercially sensitive details that the other side knows, or should know, are intended to remain private. This equitable duty is a genuine source of protection, but it is harder to rely on in practice. Without a document recording what was disclosed and on what terms, the scope of the obligation and the exact content of the information become matters of disputed evidence.

What a court checks in a breach of confidence claim

A breach of confidence claim, whether contractual or equitable, turns on four questions. The NSW Court of Appeal in Filby v TEG Live Pty Ltd [2023] NSWCA 320 confirmed that a claim will only succeed where each is answered in the claimant's favour:

Was the information identified with sufficient specificity?
Did the information have the necessary quality of confidence, meaning it was not public knowledge?
Was the information received in circumstances importing an obligation of confidence?
Was there actual or threatened misuse of the information?

If a claim succeeds, the available remedies include an injunction to stop further use or disclosure, damages or equitable compensation for the loss suffered, and in some cases an account of profits made from the misuse. Where a breach is continuing, acting quickly matters, because an urgent interlocutory injunction can stop the information spreading further before the full case is heard.

A worked example: the roastery and the distributor

Suppose a Melbourne specialty coffee roaster has spent two years developing a private-label single-origin range for grocery shelves. Before sharing the blend profile, sourcing agreements and launch pricing with a national distributor, the roaster has the distributor sign an NDA. The NDA defines the confidential information by reference to a schedule listing those specific items, permits use only to evaluate the proposed deal, and survives if the deal falls through.

Six months later the distributor's buyer resigns, taking the launch plan and pricing to a competitor, which releases a copycat range. The roaster wants to sue. Running the four questions: the information is identified in the NDA schedule; the blend profile and pricing are not public knowledge; the information was provided under a signed NDA, so the obligation of confidence is clear; and the buyer's use of the material for a rival product is exactly the misuse the NDA prohibited. The claim is strong.

Now change one fact. Suppose the roaster had instead pitched the idea at a trade fair with no NDA, describing it only as "a premium private-label coffee range". That general idea alone would be very hard to protect. It is unspecific, and the circumstances of a trade fair conversation do not obviously import an obligation of confidence. The difference between the two outcomes is the written agreement and the specificity of what it defined.

Where the label really counts: government tenders and FOI

The "commercial in confidence" label carries particular weight in dealings with government, but even there it is not decisive.

When a business tenders for a Commonwealth contract, its submission is treated as confidential during the procurement process. However, a tenderer's claim that particular material is confidential is assessed, not accepted on faith. The Department of Finance sets out a four-part "Confidentiality Test" that must be met before a supplier's commercial information is protected by a confidentiality clause in a contract: the information must be specifically identified, with a blanket "all information is confidential" clause failing the test; the information must be commercially sensitive and not generally known or ascertainable; disclosure must be capable of causing unreasonable detriment to the owner; and the information must have been provided under an understanding that it would remain confidential.

The same underlying analysis applies after the contract is awarded. Someone may lodge a freedom of information (FOI) request for the tender documents, and marking them "commercial in confidence" does not automatically exempt them. Under s 45 of the Freedom of Information Act 1982 (Cth), a document is exempt only if its disclosure would found an action for breach of confidence. The Federal Court considered this exemption in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, where the analysis turned on whether disclosure would be actionable under the general law of confidence. In addition, agencies may be required to disclose information to parliamentary committees or the Auditor-General regardless of any confidentiality clause, so no tenderer should assume that a label guarantees secrecy forever.

Misconceptions that cost businesses

Four misunderstandings come up again and again:

The stamp protects you: Writing "commercial in confidence" on a document does not make it confidential. If the information is generic or public, the label changes nothing. It only helps when the information underneath is genuinely protectable.
"Everything we share is confidential" is a workable definition: It is not. Courts, and the Department of Finance's Confidentiality Test, require information to be specifically identified. A clause that sweeps in all information protects little, because neither party can later say what was actually covered.
A vague idea pitched in a meeting is protected: Filby v TEG Live is a reminder that general and inchoate ideas are not confidential information. Pitching a concept without an NDA and without specificity can leave a business with no claim at all.
"Commercial in confidence" material can never be released: FOI laws, parliamentary committees, the Auditor-General and the courts can all compel disclosure. The label is weighed, not decisive.

When you need a lawyer

The label raises questions that are best answered before information changes hands, and a commercial lawyer can help at three points.

Before sharing, a lawyer can draft the NDA or confidentiality clause, decide whether a one-way or mutual arrangement fits, and define the confidential information precisely enough to survive a court's scrutiny. They can also run a practical audit of what the business actually holds that is protectable, how it is stored, who has access to it, and whether access is limited to those who genuinely need it.

At the first sign of a breach, urgency is everything. A lawyer can test the claim against the four elements, starting with the specificity question that defeats most claims, send a cease and desist letter, and apply for an interlocutory injunction if the information is still spreading. Getting that assessment before committing to litigation can save a business a costly case it was never going to win.

In tenders and FOI disputes, a lawyer can advise on what to mark and how, respond to an agency's assessment of confidentiality claims, and object to disclosure of genuinely sensitive material. This is technical work where the label alone will not carry the day.

The misstep that costs businesses most is treating the label as the protection. A stamped document, a handshake and a general sense that "they knew it was confidential" are not a legal claim. What a court will look for is a document that identifies the specific information, records the terms on which it was given, and survives the end of the relationship.

So before your next pitch, tender or negotiation, ask yourself this: if the deal fell through tomorrow and your last meeting had been recorded, could you point to something in writing that says exactly what was confidential, who could use it and for what purpose? If you cannot, the label is doing work the law will not do for you. Get the specific information written down and protected before it is shared, not after.