AUSTRALIA Trends and Developments Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Conclusion Australia offers robust legal procedures for protect - ing trade secrets such as preliminary discovery and Anton Piller orders. The protection of trade secrets in Australia continues to evolve primarily through judi - cial decisions rather than through dedicated legisla - tive reform. As the decisions discussed above dem - onstrate, Australian courts are applying ever greater scrutiny to claims of confidentiality, and businesses seeking to protect their valuable information must be able to demonstrate that they have treated such information as confidential through appropriate opera - tional, contractual, and technical measures. At the same time, the rapid adoption of AI technolo - gies presents both opportunities and challenges for trade-secret protection. While AI can enhance busi - ness efficiency and innovation, it also creates new vectors for the inadvertent disclosure of confidential information. The Australian government’s National AI Plan signals an intent to encourage further AI adop - tion, which will require businesses to be increasingly vigilant in developing and enforcing policies and tech - nical solutions that protect their confidential informa - tion in the AI age.
types of information that may, and must not, be input into AI tools; • training – before letting employees use AI tools, companies should implement mandatory training about permitted and prohibited uses of AI; • proactive monitoring – companies should imple - ment monitoring systems to identify at an early stage any unintentional disclosure by employees of confidential information into AI tools, and should stay informed about changes in the broader AI landscape to ensure vulnerabilities are identified and rectified promptly and that industry best prac - tice is maintained; and • tighter contractual obligations – companies should tighten the disclosure provisions in their NDAs and other agreements to specifically refer to the use (or non-use) of AI tools, and ensure contracts with employees, contractors, and vendors contain robust confidentiality provisions that specifically address AI-related risks.
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