Imagine you’re sitting in a presentation. You’re hearing some great information from the presenter and you can’t wait to share it with your colleagues or with the wider community. You are just about to say something when you look in the corner of the slide and you see…

Confidential Information

You pause for a moment and ask the presenter if this slide is a secret or if you should consider it under NDA. They respond that this slide can be shared with no restrictions and the information is publicly available. Which raises the question: Why is a public slide marked “confidential”?

I Fought The Law

The laws that govern confidential information are legion. Confidential information is a bit different than copyrighted information or intellectual property that has been patented. In most cases, confidential information is treated as a trade secret. Trade secrets can be harmful if they are divulged, since a trade secret can’t be patented.

A great example is the formula for Coca-Cola. If they tried to patent it they would have to write down all the ingredients. While that would protect the very specific formulation of their drink it would also allow their competitors to create something extremely similar with a few changes and create a viable competitor. Coca-Cola chooses to protect this information by ensuring it isn’t widely known. It ranks right up there with nuclear launch codes and Star Search results.

How does the concept of trade secrets and confidential information apply to slides? Well, one of the provisions of confidential information is that distribution must be controlled somehow. This means that you can’t just hand out information to anyone walking by on the street and hope that it stays confidential. You have to control distribution through confidentiality agreements and non-disclosure agreements (NDAs).

Most of the times you are seeing slides marked “confidential” you have implicitly agreed to some kind of confidentiality agreement. You are either covered by an NDA from your employer or from the event you are attending. Even if you didn’t sign an agreement it can still be argued in a court of law that you were invited to the presentation which means the presenter was selective in who could attend. That should meet the requirements of protecting distribution of the information.

I Shouldn’t Have Said That

The other reason why you see slides prominently marked as confidential is because the law says they have to be to be protected. A company can’t release information not bearing a confidential mark and then suddenly decide after the fact that said information should have been confidential. Could you imagine a world where companies routinely try to remove sensitive information from public knowledge because it isn’t flattering? What if they could use an ex post facto declaration to restrict distribution?

Confidential information has to be treated and marked as such from the very beginning to qualify for protection. In order to make sure that there is no chance for a slip up most companies will mark anything remotely sensitive to ensure it won’t come back to bite them later.

But why put the confidential marking on slides that you’re going to show to the world? What if those slide get uploaded to the Internet and shared all over the world as often happens? What purpose could it serve?

The reason to mark slides as confidential is to make sure you can restrict their use whenever you want. Rarely are slides uploaded by a company with a confidential marking. In order for something to be uploaded it has to be cleared through a legal department. So if there are slides out there that exist with a confidential marking it’s more likely someone uploaded them without explicit permission. Which isn’t a bad thing in general.

What if a competitor gets a copy of the slides and starts using the information? Or better yet, what if they use it in a marketing campaign against the company?

If the slide is marked as “confidential”, that allows the company to use legal means to remove the information or disallow use of the information. It means that rather than just complaining or fighting a marketing battle that heavier means can be used to take down anything embarrassing. It’s also more lasting to bar anyone from mentioning anything listed on a confidential slide.

Tom’s Take

I agree that the whole legal need to label everything short of your underwear as “confidential” is just plain stupid. This is the same legal system that says trademarks must be defended to be protected. But the rules are the rules. Which means that any company that wants to protect confidential information must mark it that way from the genesis of the concept. And having the ability to protect those assets also means dealing with misleading marks long after the information has entered the wild. Just make sure you ask the right questions before divulging anything that could be considered confidential.