NDAs: Beware of what you wish for

Disputes invariably come down to money. Whether you already have much of it and want more, or too little and also want more. Let’s face it, most of us can be swayed in pursuit of it. And it’s the defining feature of an NDA – a contract between parties in which one receives remuneration in exchange for their silence (except in relation to criminal conduct). Yet the latest furore over the use of NDAs, involving a businessman that the Telegraph sought to expose, alleged to arise from claims of sexual harassment, racial abuse and bullying, has been cast as another example of money improperly buying silence – but for how long?

Of course there are multiple considerations in making the decision to enter into an NDA contract. Those of us involved in advising on the media interest in litigation know the extent to which any intrusion of privacy can have long-lasting impact on the lives of the individuals involved, and those close to them. No innocent but injured employee blowing the whistle wishes to be forever defined as a litigant, or worse. No boyfriend, husband, wife or girlfriend of a complainant wishes to endlessly relive the stresses placed on their partner from the initial incident(s) right through to a trial. Which hurt party wishes to have their name splashed across newspapers and archived online for their parents, children, future work colleagues, neighbours etc to comment on or gossip about?

In our experience, complainants usually want the misconduct acknowledged, for it to stop, a sincere apology given, remedial action taken and for them to continue their lives unfettered by the original action. Media exposure is a by-product of litigation.

However there are cases in which the experiences are not properly acknowledged, no admission or apology is given, the discomfort felt by the complainant is so severe that returning to the same workplace is unpalatable, the feeling that no one believes you is palpable, and concerns that if the detail were known to the public they would rush to judge you too – and so the maintenance of privacy becomes the primary objective. In these circumstances, the NDA, with its attendant pay off, seems the least injurious end to an extremely distressing and unwarranted episode, notwithstanding a desire to call out sexual misconduct.

That’s probably why two of the complainants in the Telegraph injunction story are supportive of the claimants’ efforts to injunct media reporting.

The other side of the coin is that the public deserves to know of serial sexual harassers. While the media spotlight rises and wanes, its lifespan is usually dictated by the arrival of the next cause celebre. However during its brightest glare any expectation of privacy diminishes, and where there’s moral judgment to be had, it’s even harder to keep issues hidden in the dark. Your rights as an individual complainant risk being trampled in the cause of a public exposure of wrongdoing. Where the matter involves a movement as strong and compelling as #MeToo, anonymising your involvement seems only a partial remedy to concerns over your privacy. There are some who condemn those who decline to expose others. Being caught in this wave of the righteous is an uncomfortable place to be.

As for an alleged perpetrator, seeking an injunction to prevent publication on the back of a breach of confidence – surely someone will have warned them such action brings greater attention to the matter they are trying to prevent becoming common knowledge. Injunctions simply can’t defeat publication somewhere in the world of the internet.

Here’s an alternative approach from those in the know – hold fire on the defamation and privacy lawyers’ letters and other recourse to the law as there’s often some way to mitigate historic behaviour, or publicly learn from mistakes of the past. Schadenfreude is a powerful thing but self-flagellation has a way of allowing people, in time, to forgive the transgressions of others, depending of course on their severity and frequency, and the sincerity of the self-reflection.

Whereas using your money and the victims’ interests as a means to stamp on the media, particularly when there’s a worldwide campaign in full swing, rarely ends well. Money may not matter in the end.

25 October 2018

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