Non-disclosure agreements, employment contracts and settlement agreements that contain confidentiality provisions are still useful where they originated: in commercial law, where they are used to protect intellectual property. But they have no place in the public sector or in cases of wrongdoing and sexual harassment.
The charge sheet against NDAs is long. Harvey Weinstein used one to cover up an allegation of rape, as did Cristiano Ronaldo. The UK government has reportedly used NDAs to keep its future border arrangements with the EU secret. Products from silicone-gel breast implants, pickup-truck fuel tanks and sleeping pills, to painkillers and heart valves have all had their defects hidden by confidentiality agreements. The UK gambling giant Ladbrokes paid off the victims of a gambling addict who stole from them by using an NDA to stop the case being reported to the regulators. The Catholic Church used NDAs to silence hundreds of victims of its sexual abuse. The public interest was absent in each of these cases.
It is true that victims of harassment, bullying or worse can sometimes find NDAs useful to protect their rights. But too often they are protecting themselves against failings in their work culture or the justice system. The process of going to law can be too gruelling, too exposing, and too unpredictable to take on (easier to sign an NDA instead); the fear of being singled out as a “troublemaker” at work can be enough to make the option of paid-for silence preferable.
To deny victims access to NDAs in these circumstances is to ask them to carry an additional burden: the fact of dealing with what has happened to them in public rather than private. That burden is real and not to be discounted.
But to carry on using NDAs as sticking plasters on a justice system that is failing, or workplaces that still punish whistleblowers, will only delay the moment of real reform. And the beneficiaries of delay are nearly always men who are wealthy, powerful or both. NDAs in which a party is contracted to keep quiet about wrongful activities are intended to suppress speech, not facilitate business. The purpose of an NDA in this context is to keep the public uninformed and when they are used as a matter of routine, as they increasingly are, the problem grows for us all. Silence provides no incentive for improvement.