Exposing the nondisclosure agreement
Until relatively recently, few people beyond corporate boardrooms had heard of non-disclosure agreements (NDAS). In business they act as a contractual constraint on senior employees divulging commercial secrets to other firms. To that extent they have a legitimate function. They then came into the public eye as a means of binding employees, such as nannies or au pairs working in the homes of the famous, not to reveal gossipy titbits about the behaviour of their celebrity employers. Shamefully, they have also been used in the public sector, notably the NHS, to stop workers highlighting safety concerns, to the detriment of the public.
Over the past year or so, they have become associated with the efforts of the rich and powerful to prevent information about their nefarious activities coming to light. The most high-profile case is that involving Harvey Weinstein, the Hollywood producer, who used NDAS to pay off and silence women who have now come forward to allege that they were harassed or abused.
It might be thought that wealthy individuals using their considerable influence and legal clout in this way deserve to be exposed. After all, these are not people merely seeking to protect their privacy. They are trying to cover up a dirty secret and one that has had a profound impact on the victims they have sought to shut up.
Moreover, by stopping information about alleged deplorable behaviour becoming widely known, NDAS risk other potential targets for harassment or abuse unwittingly taking a job with an employer who they might otherwise have given a wide berth. There is, then, legitimate public interest in exposing the existence of NDAS where they point to a pattern of immoral or reprehensible behaviour by someone in a position of power and authority.
This newspaper wishes to do just that. A businessman has used NDAS in at least five instances to pay employees substantial sums to stop them accusing him of sexual harassment and racial abuse. He has used considerable resources to fight disclosure, achieving an interim injunction preventing publication.
A High Court judge had refused to grant an injunction. But the Court of Appeal has overturned that ruling and imposed an injunction which remains in place pending a full hearing in the New Year. We have, in other words, been gagged, contrary to the age-old principle against prior restraint of the press. If the businessman had used defamation laws to block publication, he would not have been granted an injunction since this newspaper would have declared its readiness to prove the truth of the allegations.
This is, therefore, not just a story about the misuse of NDAS, whose original purpose has been bent and skewed to silence allegations of wrongdoing. It is about the freedom of the press to disclose this information and identify the individual concerned.
In the High Court, Justice Haddon-cave concluded that “in all the circumstances, the public interest in publication outweighs any confidentiality attaching to the information”.
However, the businessman, who has so far spent close to £500,000 in legal fees to block his identification, went to the Court of Appeal. There, Sir Terence Etherton, the Master of the Rolls, sitting with two other judges, one an expert in employment law, treated this as a matter of contractual obligation. In other words, contracts (to which this newspaper is not party) are deemed to trump our rights to report on what is, by any measure, a matter of public interest.
Indeed, the Appeal Court acknowledged the statement of Mr Justice Haddon-cave “that publication by The Telegraph of the information in question was clearly capable of significantly contributing to a debate in a democratic society and, in particular, making a contribution to a current debate of general public interest on misconduct in the workplace”.
This debate has been raging since the Weinstein scandal and the emergence of the #Metoo campaign aimed at exposing those who exploit their authority over others, either to belittle and intimidate or to harass and abuse.
A recent report from the Commons select committee on women and equalities concluded that NDAS should not be allowed if they are intended to cover up abusive behaviour by bosses.
But why should it require the legislators to step in to stop a practice that is, or should be, unethical? It is, surely, wrong for lawyers to draft such agreements knowing that their purpose is to conceal allegations of improper, even potentially criminal, behaviour.
The courts are conspiring in this pernicious tendency by imposing an injunction on this newspaper for seeking to expose the matter in the proper traditions of a free press. The judges said they needed to take into account “the important and legitimate role played by non-disclosure agreements in the consensual settlement of disputes, both generally but in particular in the employment field.”
But are we talking here about the use of NDAS for the “consensual settlement of disputes” or was this hush money paid to vulnerable people to protect a businessman’s reputation? The public – and, indeed, his employees – have a right to know.