Harvey Weinstein. Fox News, Roger Ailes and Bill O’Reilly. Donald Trump and Stormy Daniels. The Presidents Club Charity Dinner. These were some of the biggest news stories of the last year and they have a lot in common. At their core, they are about unequal power structures that have allowed men to abuse, suppress and silence women. They’re about justice, and systematically evading that. Often, they’re about plump, white hotel robes. They also share another key, and arguably controversial, component: non-disclosure agreements (NDAs).
NDAs basically ensure that people shut up. Information becomes more than just secret – it becomes almost non-existent. Many of us will have signed an NDA at some point. This type of contract is routine in employment contracts to protect confidential information. They are usually a part of settlement agreements when you leave a job. They are used so that companies can assess businesses they are interested in buying. Editors, including here at The Pool, sign NDAs every week so that journalists can have early access to books, films and TV shows – it’s a “no spoilers” agreement.
But, over time, NDAs have garnered a more nefarious purpose: to cover up criminal behaviour, often in cases of sexual harassment and abuse. And they can be extremely severe. The Weinstein Company itself, which recently cancelled all NDAs in relation to Harvey Weinstein’s misconduct, described the way he used them as “a secret weapon to silence his accusers”.
And silence is the key word here. Because NDAs didn’t just mean that Weinstein’s victims couldn’t go public – they prevented them from speaking about their trauma at all. Zelda Perkins was the first woman to break her Weinstein NDA. The former assistant signed it in 1998, when she left Miramax, after years of sexual harassment and discovering that Weinstein had attempted to rape her colleague. In March, she told the Women and Equalities select committee how her NDA prevented her from speaking to friends, family members, lawyers, doctors, therapists or financial advisors about what had happened. She was rendered wholly isolated by this powerful piece of paper.
It was so strict that, although the colleague who was subject to the attempted rape sought counselling, she never disclosed her assault to a therapist out of fear of retribution. Perkins described her NDA as “morally lacking on every level”.
A Canadian actress, Mikaela Davies, recently wrote about her experience with an equally strict NDA following sexual harassment. In a brave article, she explains, “By not having the right to confide in close friends, my parents or even a therapist about my experience of sexual harassment and the subsequent isolation I felt after coming forward, I kept that pain inside.”
On being asked to sign the agreement, she says, “The paradox of taking so long to find the courage to use my voice to ultimately be met with legally binding silence wasn’t lost on me,” and summarises “it erased my entire experience”.
The whole purpose of these agreements is to put people, as we lawyers rather pompously say, in terrorem – in terror. The idea is that the consequences of breaching them will be so dire that doing so is not worthwhile
The NDAs used by Fox News to suppress misconduct claims against Roger Ailes and Bill O’Reilly were similarly restrictive.
When it comes to sexual harassment, NDAs keep victims segregated. They ensure that no one can take strength, confidence or courage from another person’s experience. Instead, victims remain alone and in the dark, more solitary than ever.
Rebecca Hilsenrath, chief executive of the Equalities and Human Rights Commission (EHRC), explains that these extremely strict limitations may not actually be enforceable: “They cannot lawfully prevent a person from reporting a crime or making a protected disclosure ie whistleblowing,” but that “it is likely to be unclear to the individual what they can and can’t discuss and the threat of legal consequences if they breach the NDA may simply put them off saying anything.”
And this is the second part of the problem with NDAs. As Mark Stephens, a lawyer from Howard Kennedy who currently represents Zelda Perkins, explains: “[Zelda] believed she could go to jail. I personally don’t think that’s right, but certainly that’s the impression she was left with at the end of this rather sordid process. And I think many women are.”
The sordid process he refers to is that Perkins’ case required negotiations over three days, including one 12-hour session that ended at 5am. She describes it as: “a sort of siege mentality. You lose track of time and place. You’re in a battle.”
When it came to actually signing the agreement, Weinstein was in the room with the two women he had harassed and assaulted. They had to leave without a copy of the document that bound them to silence. The law firm that acted for Weinstein and Miramax – Allen & Overy – is currently under investigation by the Solicitors Regulation Authority over its conduct in Perkins’ case.
Stephens explains that NDAs are designed to intimidate: “The whole purpose of these agreements is to put people, as we lawyers rather pompously say, in terrorem – in terror. The idea is that the consequences of breaching them will be so dire that doing so is not worthwhile.”
Thus it has become the norm for agreements to protect the employer, rather than the employee, as is chillingly evident in the use of preemptive NDAs for the Presidents Club hostesses.
What Perkins and her colleague hoped to achieve from their NDA was that Weinstein would undergo therapy, and that if he repeated his behaviour he would be either sacked or reported to to the board. Neither happened, and Perkins says, “essentially, we were defrauded”.
The effect they have is that it does silence women – by definition it has to – and it does hide the problem and undermine our ability to really tackle the problem
The women’s voices were worthless – they were disadvantaged from the start of proceedings by a legal procedure ripe for abuse and a fearsome opposition. And, invariably, powerful men can afford a formidable troop of protectors.
Trump’s legal team, for example, is notorious for imposing devastatingly large penalties for the breach of NDAs – in the case of Daniels, although she only received a $130,000 payment, she would have to pay $1m every time she breaks the agreement.
(The small print here is that, currently, Trump claims he did not know about the NDA, which was instead signed by his lawyer, which means it may not be valid in the first place.)
In the case of Trump, the crucial difference is that the NDA agreements Daniels and the other women are currently suing to break concern consensual sex. Here, a powerful man is using NDAs to keep information private, in a more traditional use of how celebrities use these types of agreements.
But the fact remains that those who can afford it are able to bury information that might harm them, even if it would be in the public interest to know about it.
Certainly there has been uproar at the news that Trump demanded that White House staffers sign NDAs to prevent them sharing confidential information both during and after his presidency. One prominent lawyer even offered his services pro bono to help challenge the signed agreements on the grounds that they violated the First Amendment. Needless to say, NDAs were not used under the Obama administration.
So, how has the use of these agreements become so warped, especially in relation to workplace sexual harassment?
Well, it is also the case that NDAs are not always bad for victims. As The New Yorker points out, a complainant is unlikely to win in court against a corporation: “Sometimes the only bargaining chip the less powerful party has is the possibility of silence.”
Sam Smethers, chief executive of the Fawcett Society, agrees: “Maybe you don’t want to be the person bringing the big claim, in the public eye, to have it drag on and be part of your life going forward. There are lots of women who feel like that and you have to respect that… To say [NDAs] are a bad thing is a bit simplistic. But the effect they have is that it does silence women – by definition it has to – and it does hide the problem and undermine our ability to really tackle the problem.” As companies currently do not have to keep a log of the NDAs they sign or who and what they relate to, it is impossible to spot patterns of behaviour.
Currently, calls are for reform, rather than a total rejection of NDAs. A recent report on ending workplace sexual harassment from the EHRC suggests that there is a place for NDAs, but that confidentiality should only be available at the request of a victim who would rather not have their experience widely known, for example if they were from a strict religious background. That person would still be able to go to the police, a lawyer or a doctor. It would be designed to protect the victim and not the perpetrator. At the moment, this is just a recommendation, one that would introduce new legislation to prevent NDAs being used to deter people from speaking out in cases of discrimination and harassment. But it says a lot that an organisation as respected as the EHRC would include NDAs so prominently in their report on ending workplace harassment.
Because, essentially, NDAs have always done the same thing: they are gagging orders designed to keep the cat very much in the bag. Appropriate when used to keep necessary information confidential and often highly inappropriate when they are used to conceal behaviour that may reflect an unflattering light on a company or individual.
The reason we care about them now is because we are beginning to truly value transparency. We can see the unfair advantage that NDAs can give wealthy, powerful figures – often men – and the voice they steal from those they oppose – often women. That they are tools used to threaten and intimidate. And time is up on those power dynamics.