An over-restrictive confidentiality provision can breach EU competition law – and then it is useless.

It has been known for a long time that employee confidentiality provisions can be too tight. The court has recently confirmed that this can apply to non-employee restrictions.

Ricoh had undertaken that, while they possessed relevant information, they would not make, accept or initiate contact with a wide range of people, including any person who Ricoh knew had any actual or prospective connection with the other party. This was too broad. The court struck it down as far beyond what was necessary, on any view, to protect the claimant. The object or effect of the clause was to restrict competition and it was unenforceable under EU law. This is perhaps an unusual success, as UK courts are generally sceptical of EU competition law defences.

Robert Andrew Jones v Ricoh UK Ltd (2010)