Why It Matters
NDAs are used by powerful people and organizations as a way to “buy silence” from those with less power.
For example, employment offers may be conditioned on acceptance of an NDA that forces the employee to mediate assault and abuse claims in private. By preventing employees from “going public” with allegations of abuse, the power-holder prevents victims from warning other potential victims. See examples below.
A non-disclosure agreement (NDA) creates a legal obligation to keep secrets.
- An NDA is a legally enforceable contract.
- It creates a confidential relationship between a party (such as a business, political organization or powerful employer) that wants to require certain information be kept secret.
- The contract restricts access to material, knowledge, or information by requiring the person signing the agreement to keep the information secret and secure.
- It therefore becomes illegal to share the designated material with the media, the public or any third party.
- A person who violates an NDA can be sued for damages. A court may order the person to stop sharing the secrets, to pay for losses by the secret-holder, and/or may be held in contempt of court — thereby potentially facing criminal charges.
- Other names for an NDA include Confidentiality Agreement (CA), Proprietary Information Agreement (PIA), Secrecy Agreement and Gagging Clause.
- NDAs specify what is confidential and for what time-period. As of this writing, U.S. companies commonly create NDAs that last five years and European companies often create NDAs to last 10 years. Some NDAs never expire. (upcounsel)
- NDAs are used to protect information such as customer names, business operations and accounting, intellectual property and trade secrets. However, the type of information that an NDA may cover is virtually unlimited. (Rocket Lawyer)
- NDAs may be either “unilateral” (confidential information is being disclosed by one party to another) or “mutual” (both parties are disclosing confidential information).
- NDAs provide 1) written evidence that particular information has been disclosed, 2) that the person who gave it considers it confidential, and 3) that the recipient agreed to secrecy.
- An NDA does not prevent legal recourse. But it can — and usually does — prevent public disclosure of the illegal activity.
Anything that would invalidate a contract would presumably invalidate an NDA. A valid contract requires:
- The subject matter must be legal.
- The signing parties must be over the age of consent and mentally able to carry out the agreements.
- The signing parties must freely agree to the terms.
Doesn’t Prevent Legal Action But Prevents Public Disclosure of Crimes
Offers of employment, particularly when they come from public figures, are sometimes conditioned on the employee’s acceptance of an NDA in which the employee promises not to publicly disclose what they see or experience at work… An NDA would not allow an employee to… “go public” with allegations of abuse. These issues raise an obvious and troubling question: what about warning other potential victims of abuse?–Gloria Allred & John S. West
Confidentiality & Attorneys
- According to the employment attorney quoted below, it is illegal to share confidential information with your attorney.
- However, because what is shared with an attorney is also “privileged and confidential,” then it is possible to share the information with an attorney and then not disclose that such sharing occurred, even under oath.
- This interesting conclusion does not change the fact that the employee is legally prohibited from sharing the information publicly.
An employee’s sharing confidential information or documentation with his or her attorney is a violation of required Confidentiality, and thus could be considered gross misconduct worthy of immediate firing for “cause,” as happened to Rena. “But,” you might say, “How can I get necessary legal advice on employment-related issues if I can’t share confidential information and documentation with my attorney?” The answer is: You need to be able to do that, and it is fine to do that, but neither you nor your attorney should ever admit that you have done that, and the law says that is OK.– Alan L. Sklover
Ethical Use vs. Abuse
NDAs are used to protect information that has historically been considered reasonable and ethical in most business settings. And NDAs are used by powerful people and organizations as a way to “buy silence” from those with less power.
A Legal Way to Silence Employees’ Public Speech
NDAs… can and are enforced to silence employees’ public speech. Employers originally used NDAs to secure control over employees’ knowledge of trade secrets. At the end of the 19th century, courts expanded the scope of what NDAs could cover from only the most highly confidential pieces of information to a “general prohibition on using a wide range of firm-specific information” and to publicly disclosing information about employer misconduct.–Hiba Hafiz
May Be “All-Encompassing” & Prevents Making Abuse Public
The contracts can be so binding, so all-encompassing, that victims, in return for a financial payout, are prevented from talking about allegations of conduct ranging from systematic bullying, intimidation and abuse to sexual harassment and even assault… “They’ve been used more lately to hide people’s dirty secrets. The consequence is the public never knows,” said Robert Ottinger, founder of… a US employment law practice. “We sign settlement agreements every week, and you can’t tell anyone but your spouse, your accountant and your lawyer.– Robert Mendick
Perpetrators (Including Serial Abusers) Remain in Secrecy
Confidentiality clauses have been a fixture in our law for centuries. They have been challenged by the courts and, with some exceptions, have been generally upheld. As a result, an unknown number of victims who would come forward to warn others of predators are effectively bound and gagged by our legal system. That, in turn, allows serial abusers (or abusers on a smaller scale) to move on to more victims.– Gloria Allred & John S. West
Examples of Abuse
There are numerous cases that illustrate how NDAs have been used by powerful people and organizations — including the CIA and NSA — to silence someone less powerful. Please write us with more examples that you think should be included here.
Former CIA counterintelligence officer Kevin Shipp has extensive experience with using secrecy agreements to keep the world’s largest tech companies silent accomplices of government agencies implementing programs without oversight. Details here.
Scroll down for these examples:
- Hollywood Film Producer Harvey Weinstein & Actresses
- All-Male President’s Club & Young Women Waitresses
- Uber Ends NDA Policies for Sexual Assault Cases
- Couple Claims Sandals Resorts Required an NDA as Part of Sexual Assault Resolution
Hollywood Film Producer Harvey Weinstein & Actresses
The Weinstein Co. canceled all nondisclosure agreements that… Harvey Weinstein had initiated with women who have since accused him of sexual misconduct. The film studio… said in a statement that it is taking “an important step toward justice for any victims who have been silenced by Harvey Weinstein,” citing the nondisclosure agreements that the company said Weinstein had used as a “secret weapon to silence his accusers.”– Bryan Logan
All-Male President’s Club & Young Women Waitresses
In one of the most notorious examples in the UK, young women employed as hostesses and waitresses at the all-male Presidents Club dinner were obliged to sign NDAs that were intended to prevent them from talking about groping and other harassment by paying guests.– Robert Mendick
Uber Ends NDA Policies for Sexual Assault Cases
In the 5-minute video below, from May 15, 2018, a media organization reported on Uber’s announcement to end its previous NDA policies around sexual assault cases.
Uber is announcing a major policy change on how it handles sexual assault and harassment cases… [It] had forced accusers to mediate their claims in secret. Now those who agree to settlements will not be required to sign confidentiality agreements.– CBS This Morning
Couple Claims Resort Required NDA in Sexual Assault Resolution
In the 3-minute video below, from December 17, 2018, a media organization reported on a couple’s announcement that it is suing Sandals Resorts. The suit relates to the woman’s claim that, after reporting sexual assault by an employee of the resort, that she was told by Sandals that she must sign an NDA as part of the resolution.
Pause & Reflect
- What do you think about the use of NDAs for protecting technical secrets or intellectual property?
- How do you feel about the fact that NDAs are a legal way for power abusers to keep “virtually anything” secret from the public, including abuse and crime?
- What are your thoughts about Harvey Weinstein’s use of NDAs to legally prohibit women from speaking about sexual assault allegations?
Sources & Resources
- ABC News — Couple Sues Sandals Resorts, Alleging Sexual Assault Cover-Up
- Allred, Gloria & John S. West, BuzzFeed News — Abusers Want NDAs to Silence Their Victims. But You Can Always Seek Justice
- CBS This Morning — Uber Ends Mandatory Arbitration, NDA Policies for Sex Assault Cases
- Hafiz, Hiba, The Atlantic — How Legal Agreements Can Silence Victims of Workplace Sexual Assault
- Logan, Bryan, Business Insider — The Weinstein Co. Just Canceled Every Nondisclosure Agreement Between Harvey Weinstein and the Women Who Accused Him of Sexual Misconduct
- Mendick, Robert, The Telegraph — Non-Disclosure Agreements: Everything You Need to Know about NDAs (and their Misuse)
- Rocket Lawyer — NDA 101: What is a Non-Discosure Agreement?
- Sklover, Alan L. — Can You Share Company Secrets with Your Lawyer?
- Upcounsel — Non-Disclosure Agreement: Everything You Need to Know
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