NDAs and the Sound of Silence

NDAs and the Sound of Silence

“When truth is replaced by silence, the silence is a lie.” 
Yevgeny Yevtushenko

The #MeToo movement has brought Non-Disclosure Agreements (NDAs) as a way to silence allegations of sexual harassment into the public debate.  In light of controversies surrounding Donald Trump, Harvey Weinstein and now – Sir Philip Green, the billionaire retailer whose brands include Topshop – much has been discussed about the legality and morality of using NDAs to prevent publicity or otherwise cover up  bad behaviour.

But like any legal document, NDAs are not inherently “good” or “bad”. They are simply a tool, regularly used by lawyers in many contexts. To understand why they have become controversial, and to contribute to the debate concerning their use and abuse, we must first consider their structure and purpose.

NDAs, which are also called Confidentiality Agreements, are simply a type of contract used to prevent someone from sharing confidential information in ways which are unacceptable or damaging to another person. What information is considered “confidential” depends very much on the situation, as well as the relationship between the person providing the information (“discloser“) and the person receiving it (“recipient“).

Use of the word “confidential” to mean “intended to be treated as private” dates from the 1770s, and has its roots in the Latin word confidentia. This means “firmly trusting,” and is itself derived from confidere, which means “to have full trust or reliance.” 

Confidential information is often shared for a business purpose or in corporate negotiations, especially when mergers or collaborations occur. For example, a restaurant chain looking for a deal with a food manufacturer may want to share recipes, or a fashion designer may seek a partnership with a well-known athlete who has sketches and drawings of a sports-inspired clothing range. Likewise, when a company hires a new employee, they may be given access to company client lists, manufacturing processes or other valuable data.

The basic anatomy of the NDA is relatively straight forward, and should always contain the following elements:

  • A clear definition of the confidential information.
    These are often heavily negotiated clauses, and it is usual to have very wordy and detailed definitions which set out explicitly what is and is not captured by the agreement. Sometimes, even the NDA itself is considered “confidential information,” which means that its terms or existence must be kept secret.The discloser will often want a broad definition of confidential information which covers not only the documents or products in question, but perhaps any derivative ideas, feedback, analysis or concepts created or inspired by the confidential information. On the other hand, the receiving party will want to keep this definition as narrow as possible.

 

  • The key obligation to keep the information secret.
    Standard wording will typically begin as follows: “In return for the discloser making confidential information available to the recipient, the recipient promises to the discloser that it shall keep the confidential information secret and confidential.”However, the obligation clause almost always contains many more rules and responsibilities. For example, the recipient may be prohibited from even indirectly sharing or hinting at the confidential information. They may also be prohibited from making copies, removing the information from a particular location, or storing it on their personal smartphone.

 

  • The ways in which the information can be used.
    The recipient will be prohibited from using or exploiting the confidential information except for the “purpose.” The purpose is the defined reason the information will be shared in the first place, for example, “to establish a collaboration in respect of the Tommy Hilfiger x Lewis Hamilton fashion line.”Disclosures of the information by the recipient to their employees and professional advisers (including lawyers and accountants) are usually permitted. In such cases, the discloser may ask that all individuals who receive the confidential information from the recipient sign a separate confidentiality agreement. While some may consider this a bit over the top, it makes sense from the discloser’s perspective that the receiver should take responsibility if its employees or advisers breach confidentiality.

 

  • What happens if the project or deal does not go ahead, and the duration of the secrecy.
    The discloser will often ask that the receiver returns or destroys the confidential information if the project or transaction fails to materialise. The parties should also establish a realistic time period for the duration of the secrecy, as it may be unreasonable to expect that the information has to remain confidential for eternity.
Image result for Lilly Panholzer
Lilly Panholzer for City finds it is easy to silence women with NDAs

Seems simple enough, so what’s all the fuss about?

As mentioned above, NDAs are incredibly common and used in a wide variety of situations, ranging from complex corporate takeovers to short-term collaborations. But despite their ubiquitous nature and seemingly straightforward terms, it would be a mistake to assume that these are simple contracts. 

It is rare for the parties entering the agreement to have perfectly equal bargaining power. Due to an imbalance of money, expertise, resources or even reputation, one of the parties involved will almost always be able to exert more influence over the other. This inherent imbalance can lead to the creation of NDAs which grant – or limit – rights in an unfair or improper way.

Entrepreneurs may think that an NDA adequately protects their valuable information when it is divulged to a potential investor. But unless the definitions and obligations are sufficiently locked down, little may prevent the investor from stealing the entrepreneur’s ideas.

Similarly, some unscrupulous companies may attempt to force their employees to enter into NDAs in an attempt to prevent whistleblowing or discrimination lawsuits. Matters can become very complex when an individual who has a grievance against a powerful boss is threatened with dismissal or further harassment, unless they sign an NDA. Moreover, a new common extension of NDAs is the inclusion of a “non-disparagement” clause. This goes beyond the protection of confidential information, and requires employees to never speak negatively about their employer or former employer.

In both the United States and the United Kingdom, lawmakers and courts have begun to establish clearer boundaries about the enforceable scope of NDAs. In the court of public opinion, powerful individuals who weaponise NDAs in an attempt to stifle access to justice, impair free speech and limit creativity are already losing. Regardless of the reason for entering a NDA, you owe it to yourself to ensure the document is checked first by a lawyer, and that your rights – and remedies – are adequately protected. 

 

Sir Cliff Richards v BBC: is publicity the soul of justice?

Sir Cliff Richards v BBC: is publicity the soul of justice?

You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South Yorkshire Police. Nearly four years after the BBC first named and shamed Sir Cliff in what is now considered to have been “sensationalist” journalism, the High Court has determined that his rights of privacy were infringed.

What makes this case so interesting is that it does not focus on defamation —that is, the publication (or voicing) of a statement which adversely affects another person’s reputation. Instead, Sir Cliff won his case on the basis that the BBC’s wrongful disclosure of his private information was an invasion of his privacy. 

In Sir Cliff Richard v BBC and South Yorkshire Policethe Court considered if suspects who have not been formally charged by police have a reasonable expectation of privacy in respect of the criminal investigation. How are an individual’s rights to privacy balanced against the freedom of expression enjoyed by media organisations? That the suspect in this case is a celebrity only complicates matters, as it calls into question the importance publishing private details in the name of public interest.

Prosecutors said in 2016 that there was not enough evidence to justify criminal charges against Mr. Richard, one of Britain’s best-known entertainers, with a career spanning some 60 years. However, the BBC stands by their reportage of the allegations, and I suspect the BBC will indeed appeal this decision.

As if written for the stage, the Justice Mann’s 120-page judgement begins with a summary of key characters and the plot as it unfolded…

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Daniel Johnson, in front of Sir Cliff’s Berkshire estate

Daniel Johnson, an investigative journalist for the BBC, received a tip-off from a police insider in June 2014 that Sir Cliff was under investigation for historic sex offences against a child. In a manner some would consider blackmail, Johnson “exploited the opportunity to get confirmation of his story about Sir Cliff, and more details if possible” from the South Yorkshire Police (SYP). In exchange for Johnson not publishing the story immediately, the SYP promised that he would be given advance notice of the search of Sir Cliff’s estate. The raid was eventually conducted in August 2014, with BBC crew waiting at the gates and helicopters hovering overhead to capture the whole ordeal.

In case you’re wondering where the Beeb’s lawyers were, the BBC held a meeting to discuss whether to name Sir Cliff and when to broadcast. In her testimony, Senior Editor Fran Unsworth explained that “the legal risk was diminishing because they had got a lot of confirmation of the facts of the story”. The principal legal concern seems to have been in respect of factual accuracy and defamation, and not privacy – as “the lawyers had not flagged that up to her as a specific risk” (para 111).

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the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.
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Three gloved individuals appear to be looking through what is likely Sir Cliff’s office

The legal framework of Sir Cliff’s privacy claim is enshrined in European Convention on Human Rights, brought into force in the UK by the Human Rights Act 1998.

Article 8 sets out the right to privacy: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law […] or for the protection of the rights and freedoms of others.”

Article 10 upholds the BBC’s competing rights of expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [including those] for the protection of the reputation or rights of others.”

In instances where which both Article 8 and Article 10 are engaged, the Court has to perform a balancing and weighing act to ascertain which predominates. Neither article has prima facie precedence over the other.

Article 8 privacy protections arise only where an individual has a reasonable expectation of privacy. For example, if I have a conversation with my friend in a crowded coffee shop in central London, I cannot reasonably expect our discussion to be protected as truly private.

The 77 year-old singer told the Court that he suffered an “unbelievable amount of hurt and pain” after the BBC broadcast the allegations that he had sexually assaulted a boy in 1985. “It felt like torture, sustained over almost two years. It felt as though everything I had done, everything I had built and worked to achieve, was being torn down, like life itself was coming to an end.”

But one might wonder if, as a celebrity, Sir Cliff cannot claim to have an expectation of privacy. A certain amount of emphasis was given by the BBC to the fact that Sir Cliff was a public figure, and one who had promoted his Christian beliefs. Because Sir Cliff had been so vocal (ie public) about Christian morality, the BBC considered that his alleged sexual crimes against a child qualified as a matter of public interest. To that point, the Court acknowledged that in certain special circumstances, the public’s right to be informed can extend into private aspects of public figures (para 276).

However,  Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch) upheld that a public figure is not, by virtue of their fame, necessarily deprived of his or her legitimate expectations of privacy. Axel Springer v Germany 39954/08 [2012] ECHR 227 also makes clear that the safeguard afforded by Article 10 to journalists is subject to the proviso that they are acting in good faith and on an accurate factual basis, and that they provide “reliable and precise” information in accordance with the ethics of journalism.

In considering the BBC’s argument that the stories about Sir Cliff had been published in the public interest, the Court disagreed, saying that reporters at the BBC “were far more impressed by the size of the story and that they had the opportunity to scoop their rivals.” (para 280) This echoes the findings in Axel Springer, in that photographs and commentary which expose a person’s private life cannot be considered to have been published in the name of public interest, if they were in fact made public only to “satisfy the curiosity of a particular readership” (Axel Springer, para 48). It is unsurprising in my view that Justice Mann “came to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (para 315).

Publicity is the very soul of justice. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.

Jeremy Bentham. legal and social reformer (1748 – 1832)

Will this case have a chilling effect on media freedoms? Writing for The Guardian, Professor of Financial Journalism Jane Martinson argues that “as long as the media reports accurately – making it clear when a suspect is under investigation for a serious crime, rather than arrested or charged – there should be no bar to the public knowing what is going on.” However, in my view this fails to take into consideration the complexity of public perception. In his concluding remarks, Justice Mann cited “the failure of the public to keep the presumption of innocence in mind at all times” as an aggravating factor against the BBC.

Other criticisms focus on the point that this case provides an undeserved blanket of anonymity to criminals, providing a way to keep allegations against possible abusers secret. Whether or not there is a reasonable expectation of privacy in a police investigation is in actuality fact-sensitive question, and is not capable of a universal answer (para. 237). According to Police Guidance on Relationships with the Media, the names or identifying details of suspects of crime should not be released by police to the press or public, unless special circumstances apply — such as threat to life, the prevention or detection of crime, or a matter of public interest.

The inevitable stigma attached to the extremely serious allegations against Sir Cliff made the invasion of privacy even worse. When an individual’s good reputation is tarnished, even wrongfully, it may never be recoverable. This is especially harmful to celebrities, who rely so heavily on public favour. In my view, Sir Cliff Richards v BBC is not a sweeping new precedent that stifles freedom of the press: it simply restates the statutory protections afforded by the Human Rights Act within the context of already-established European and English case law.

Google prepares for the first “Right to Be Forgotten” trials in England

Google prepares for the first “Right to Be Forgotten” trials in England

All human beings have three lives: public, private, and secret.
― Gabriel García Márquez

The European Union’s Court of Justice decision in Google Spain v Agencia Española de Protección de Datos, Mario Costeja González (“Google Spain”) confirmed the “right to be forgotten” for European citizens. This right is further enshrined in the upcoming General Data Protection Regulations (GDPR). Accordingly, European data protection law grants individuals a qualified right to have personal data relating to them removed from search engines.

This right is however considered by some to be a uniquely European phenomena, which resulted from one unusual CJEU judgement. Now, two upcoming cases against Google will be the first time in which the “right to be forgotten” will be considered by the English Courts. 

Two unnamed claimants, known only as NT1 and NT2, are bringing a companion case against Google to enforce their right to be forgotten. (NT1 v Google and NT2 v Google,  [2018] EWHC 67 (QB) (Rev 3))

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Fame and fortune: how do celebrities protect their image?

Fame and fortune: how do celebrities protect their image?

Famous movie stars and athletes earn big bucks beyond their day job at the studio or stadium. Their image can be used to in a variety of commercial contexts, ranging from endorsements and sponsorships, to merchandising and deals with fashion brands and magazines. Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote their N°5 perfume, global sales of the fragrance increased by 30%.

Celebrities today spend a huge amount of time and energy developing and maintaining their public image. But here in the United Kingdom, “image rights” have never been clearly stated in law. So how do celebrities protect and control the publicity associated with their name, image, and brand?

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Reputation: Taylor Swift’s protections under American and English defamation law

Reputation: Taylor Swift’s protections under American and English defamation law

this post is featured on the University of the Arts London’s intellectual property blog, creativeIP.org

♫♬ Now we’ve got problems / and I don’t think we can solve them (without lawyers…)

The right to freedom of expression is not an absolute right: there are certain restrictions in place to protect an individual’s reputation. But those restrictions vary significantly, depending on which side of the Atlantic you’re on. Considering the shared legal traditions of the United States and Great Britain, their differences on the issue of free speech is surprising. 

In early September, PopFront published an article entitled “Swiftly to the alt-right: Taylor subtly gets the lower case kkk in formation.” Exploring the singer’s (somewhat convoluted, if not contrived) connections to the American alt-right, PopFront suggests Swift’s song “Look What You Made Me Do” resonates with Breitbart readers, Trump supporters, and white supremacists, et al. The article also shows a screenshot from Swift’s music video juxtaposed with a photo of Hitler, noting that “Taylor lords over an army of models from a podium, akin to what Hitler had in Nazi Germany.”

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