This decision will discourage exposure of oppressive workplace cultures

Published by The Telegraph on 23rd October 2018, at https://www.telegraph.co.uk/news/2018/10/23/non-disclosure-agreements-favour-commerce-public-interest/. 

There is a simple reason why the “Me Too” movement began with press exposure of “non-disclosure agreements” (NDAs) in America and not in Britain, although they had long been used by lawyers in both countries to hide sexual and other misconduct by people in corporate authority. It is called the First Amendment, which (absent of malice or recklessness) gives journalists a freedom of speech which in Britain is constrained by the law of breach of confidence – sometimes irrespective of the public interest in truth telling.

An example is provided by the Court of Appeal decision to stop The Telegraph from publishing an article about a powerful businessman, containing information accepted to be of public interest, because it was probably acquired as a result of employees breaching non-­disclosure agreements.

Although the initial judge said that the information would make a “significant contribution to the current debate of general public interest on misconduct in the workplace” this was outweighed, the Court of Appeal ruled, by the commercial ­importance of NDAs in settling employment disputes.

True it is that NDAs have some legitimate uses for this purpose. But a House of Commons Select Committee recently reported, after a good deal of evidence, that “they are used unfairly by some employees and lawyers to silence victims of sexual harassment.”

It is all very well for the Court of Appeal to highlight the fact that they are voluntary, often with lawyers on both sides, but this does not take into account the imbalance of bargaining power. It overlooks the fear that NDAs engender (a ruinous court action and other reprisals) if the employee is tempted to speak out.

It took great courage for Zelda Perkins, Harvey Weinstein’s British assistant, to breach her NDA and this latest decision will discourage others (and other journalists) – from exposing oppressive workplace cultures and practices. If they publish falsehoods, they can be sued for libel. The problem with a breach of confidence injunction is that they cannot publish at all, especially if the story is true.

That said, the “Me Too” movement can create a popular presumption of guilt. The agony of Geoffrey Rush, the actor accused of sexually touching his Cordelia when playing King Lear, was evident when he testified at the defamation trial that he brought this week against his tabloid tormentors. Nonetheless, he has his remedy in law, while those gagged by NDAs have no such remedy.

Once, Lord Denning would cut through egregious breach of confidence claims with the maxim “there can be no confidence in iniquity” (although his definition of “iniquity” was idiosyncratic). Now, thanks to the European Convention on Human Rights its guarantee of freedom of information must be “balanced” against a new right to privacy, although it remains unclear how damage to a company or an individual senior executive can overbear the public interest in exposing misconduct.

Commercial lawyers who later become judges may have an instinctive preference for freedom of contract over freedom of speech, as if asked to balance hard cash against hot air. Thus free speech becomes expensive speech. Journalists, obeying their professional rules and calling executives to ask for their side of unattractive stories, will receive not refutations or explanations but a High Court injunction.

Win or lose at first instance, the case (although the injunction is said to be “interim” – ie until trial) will be continued in the higher courts and the trial may never take place. This involves substantial legal expense beyond the capacity of employees who wish to speak out and scarcely affordable by cash-strapped newspapers. At least some MPs have become concerned about what the select committee terms “unethical” NDAs when it called upon the Government to “clean-up” their use.

In a House of Commons poleaxed by Brexit that may be asking too much. But it is to Parliament and not to the courts that campaigners like Zelda Perkins must turn for the right to say “Me Too” without going bankrupt.