Should we make non-disclosure agreements illegal? NDAs are used by powerful corporations and people to buy off complaints and keep their dirty secrets. Isn’t this an abuse of power that’s contrary to the public interest?
Non-disclosure agreements. Protecting your confidentiality? Or hush money to cover up dirty secrets?
Hi, I'm Leon Hawthorne. We all want to protect our private information, but when does this amount to an abuse of power, contrary to the public interest?
A non-disclosure agreement - or NDA - is a legally enforceable contract that prevents one or all parties talking about key facts, often including the existence of the NDA, itself.
NDAs do have a legitimate purpose in business, such as protecting trade secrets.
However, they have fallen into disrepute because powerful companies and individuals use them effectively to bribe people.
'We'll give you a wad of money, but you have to keep your mouth shut about whatever is the issue in dispute.'
JIMMY KIMMEL: "Please welcome Stormy Daniels."
Watch this. Porn star Stormy Daniels is said to have been paid $130,000 to keep schtum about her alleged affair with Donald Trump.
JIMMY KIMMEL: "I know you either do or don't have a non-disclosure agreement, which if you didn't have a non-disclosure agreement... do you have a non-disclosure agreement?"
STORMY DANIELS: "Do I?"
JIMMY KIMMEL: "You can't say whether you have a non-disclosure agreement, but if you didn't have a non-disclosure agreement, you most certainly could say: 'I don't have a non-disclosure agreement'. Yes'?"
STORMY DANIELS: "You're so smart, Jimmy."
JIMMY KIMMEL: "Thank you very much."
Sex and sexual harassment are big areas for NDAs. Movie producer, Harvey Weinstein used NDAs with some of the women, now accusing him of abuse.
But NDAs are also used by employers in discrimination claims and by companies to cover up dodgy products that injure customers... anything, where it's cheaper to buy off one or two complainants, as long as they promise to keep their silence.
Now, you could argue: if you accuse me of, say, sexual harassment. Then without admitting guilt, I pay you x thousand pounds, just to make the whole thing go away, what's wrong with that?
If I ask you to sign an NDA in exchange for the settlement, you don't have to sign it. You can choose to go public and take the issue to court. But, of course, you might lose the law suit.
Clearly, this issue isn't straightforward.
However, the law does limit what we can put in private contracts. For example, betting contracts are not enforceable and you cannot make a contract to buy or sell your body parts.
So, I propose we legislate how and when NDAs can be used.
I would exclude all circumstances which relate to alleged criminal behaviour; also personal injury in civil matters; sexual harassment; and a blanket ban on NDAs to protect public bodies and charities, other than legitimate trade secrets and data protection.
Those are the controversial areas, where the danger to society at large outweighs the potential financial benefit to a complainant, who might even prefer to do a secret deal.
Secrecy rarely leads to good governance or to good behaviour. It's time for legislators to crack down on the abuse of power that NDAs represent.
I'm Leon Hawthorne. Thank for watching.