“Is it legal to steal information from your employer?”

Most questions that start with “Is it legal to steal” lead to answers that start with “No.” But let’s delve into this one in a bit more detail.

You see, WordPress shows me the search terms that people use to find this blog, and earlier today somebody actually found Legal Gateways by searching, “is it legal to steal information from your employer?” Unfortunately, that person would not have actually found the answer to their question here, which I thought was a shame. So — understanding that this is not legal advice, and that I can’t say anything about any individual’s situation — here is a general answer, at least under Canadian law.

To answer the question, we have to figure out what we mean by “information,” and what we mean by “steal.”

Employees do have obligations to protect their employers’ confidential information, which continue even after the employee resigns or is terminated. The first question to ask, then, is whether the information is confidential. Many employers will have their employees sign confidentiality agreements, which will define exactly what information is considered confidential. In the absence of an agreement, however, employees still have a duty of confidentiality, and they are expected to use a degree of common sense to figure out what sorts of information an employer would expect them to keep secret.

Things that would be covered likely include sensitive commercial information, like costs, pricing structures and customer lists; corporate strategies; trade secrets, such as processes, recipes or methods for creating the product or delivering the service; information that the company is required by law to keep confidential, such as personal information about individual customers or employees; and any other information that the company would reasonably be upset about falling into a competitor’s hands.

Information is not “confidential” if it is already in the public sphere — as long as it didn’t get there by somebody else breaking their own confidentiality obligations!

So, no, it is not legal to disclose your employer’s (or former employer’s) confidential information, if that is what we mean by “stealing” it. Since it may be very difficult to use the information without disclosing it, that will end up closing the door to a lot of the purposes of “stealing.” That said, certain uses of information might be acceptable, if the information can be used without being disclosed. Misappropriating trade secrets is probably not okay, and neither is using information in a manner that would violate a copyright or trademark. But soliciting the employer’s customers — using information about who those customers are — may well be okay as long as there isn’t a contract which specifically prohibits it.

(Even when there is a contract prohibiting it, courts are very sensitive about when those contracts will be enforced. If you are an employer, and want to have your employees sign non-solicitation or non-competition agreements that will actually be legally binding on them, that is an area where you really should get advice from a qualified employment lawyer).

That said, what an employer cannot control is what is in its employees’ heads. Employees can’t be expected to simply forget knowledge acquired and information learned. Even if information came from the employer originally, once it is part of an employee’s knowledge and memory, it becomes very difficult for an employer to claim an exclusive right to it. To the extent that information is confidential, the employee may not be able to disclose it, but they can certainly use their own knowledge and memories.

You may have noticed that I have been stressing the ideas of disclosing and using an employer’s information, which seem to me to be more meaningful than the concept of stealing it. Taking your employer’s information and putting it in a box in your basement is unlikely to be too objectionable, unless your employer has specific policies about that or you’re in an industry which is especially sensitive to confidentiality, like banking or health care or national security. But why would you take your employer’s information if you didn’t intend to use it? Is the type of use you’re considering inherently wrong, for example because it would violate a copyright or trade secret protection? And in any event, practically speaking, would you be able to use it without disclosing it? Or is the information not actually confidential in the first place because it’s already public knowledge? These are the types of questions that we need to ask.

One final point: a lot of what I’ve talked about so far assumes that the employee is no longer with the employer. But if the employee is still employed, there is a whole new set of concerns. The employee will have a much higher duty of faithfulness to the employer while still employed, and will want to be much more careful to not use the employer’s information in a way that might be contrary to its interests.

This really only scratches the surface of the question, and it’s a bit difficult to answer without knowing what “steal information from your employer” means. But the bottom line is, whenever your question starts with the words “is it legal to steal,” you should, at the very least, proceed with caution.

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