The question of the duration of the confidentiality agreement is not an easy one.
The disclosing party will generally want the confidentiality of the information transmitted to be guaranteed in perpetuity. The problem is that a perpetual obligation is contrary to the principles of civil law . In addition, some authors point out that such an option would also be problematic in terms of certain fundamental freedoms guaranteed by the European Convention on Human Rights (see Vanbrabant, referred below).
However, it is not sufficient to stipulate that the confidentiality obligation applies for an indefinite period, as in such a case, either party may terminate the agreement by giving reasonable notice (the length of this notice period may even be defined in the agreement).
To get around this difficulty, confidentiality agreements are generally concluded for a fixed term. The disclosing party will then seek to ensure that this duration is as long as possible (for example 10 years) . However, this solution will not be ideal for the disclosing party, who may wish to extend the period of protection beyond this period.
Part of the solution might then be to provide that, in the absence of termination at the end of the initial period of protection, the obligation of confidentiality is extended for a further period defined in the contract; but the fact that the other party has the right to object to this extension makes the usefulness of such a clause uncertain. However, after a long period, the transmission of confidential information may involve, even after the expiry of the period of protection, the breach of an obligation to return the information.
The question arises as to whether the duration cannot be variable in time and be worth, for example as long as the information concerned has not “fallen into the public domain”. We follow V. VanBrabant, who uses an element of the definition of a business secret as set out in the Code of Economic Law, as that which is not “generally known to persons belonging to the circles which normally deal with the type of information in question, or is not easily accessible to them” (see art. I.17/1, 1°, a, CDE). See v Vanbrabant, B., “Chapter 4 – Taire, exploiter, trouver : le secret d’affaires saisi par le contrat” in Campolini, Ph. et al (dir.), Secrets d’affaires, 1st edition, Brussels, Larcier, 2020, p. 154 et seq.
To our knowledge, this solution, which was accepted by the Ghent Court of Appeal in a judgment of 22 May 2017, is not unanimously accepted in Belgium. Vanbrabant reports that, in favour of an affirmative answer, it will be stressed that such an obligation is not very onerous, as it does not require the debtor to make any positive performance, and that, in support of a negative answer, it will be argued that such a perpetual obligation would be tantamount to creating a form of servitude.
