I mean it sounds like a Stephen King novel doesn’t it? Like some odious triffid-like creature that threatens the mere existence of us mere mortals. Before you correct me I’m aware that it was John Wyndham that created the triffids, but I obviously went for the writer more easily associated with horror stories. Anyway. . . back to the point of the blog.
NDAs or Non-Disclosure Agreements to give them their full legal title have been around around for decades, they came into their own in the 1970s, however, it wasn’t until the 80s that they started being de rigueur in legal settlement agreements. When they originated (and indeed even today really) they made sense. Companies dealing with valuable intellectual property wanted to protect their knowledge and innovation, and so wanted to ensure that employee X couldn’t just nick their ideas or indeed sell their ideas to other companies.
Interestingly enough most of us became really aware of NDAs through court orders designed to protect abusers. An affair here, an out-of-wedlock baby there, maybe even some criminal activity, all shrouded in secrecy by the perpetrators being financially able to pay their way out of a scandal, with a cheeky NDA thrown into the deal to guarantee that the story didn’t come out, thereby ensuring that their “perfect public image” remained intact.
More recently our industry has seen an explosion of NDAs being used, predominantly for castings eg it’s not unusual now if a performer is auditioning for a major production they are first required to sign an NDA. In a way, like the origins of the NDAs, this makes sense – there can’t be that many creatives around who haven’t seen one of their informally discussed creative brainwaves be turned into a show by a bigger, more resourceful company before they could ask for loose change for a reading. I completely get wanting to protect your idea.
However, there is a huge concern that the use of NDAs is being exploited by companies with the resources to gag and isolate performers. In fact, so much concern that Equity have now issued guidance on it. Then there’s the thing that completely floored me when I first heard about it – drama colleges getting people to sign NDAs, indeed not only drama colleges, universities too. This is seemingly so much of a big deal that even the government have stepped in to stop it happening. When all the various horror stories were coming out about the systemic abuse and racism in certain colleges, it was striking that people were too afraid to speak out because of this NDA culture.
When discussing NDAs with some friends quite recently I discovered that it’s now considered normal to add some sort of NDA into a termination of a contract package. . . not, I should quickly add for the protection of the person leaving the job, solely to protect the reputation of the organisation that they’re leaving.
Which leads me to this conclusion – why has it become the norm to silence people that might have something incredibly important to say? When did this sub-culture start to emerge in the UK which basically says that those with money have the right to silence those that need it? We’re not talking about intellectual property, we’re not talking about trade secrets, we’re talking about a culture of silence designed to protect those people and organisations that know they’ve done wrong. It’s like legal blackmail – if you want the financial settlement either at the end of a contract or as compensation for some wrongdoing, you have to sign away your right to speak out. They are legally preventing people from implementing change, meaning that those toxic environments & indeed toxic people can simply move on to their next fodder.
Seemingly I’m not the only one to think that this is corrupt and indeed immoral, back in 2020 Forbes published this take on the situation, and there is currently a lot of talk within the UK of NDAs not being enforceable when they have been used as part of a golden handshake (surely that should be handcuffs), or when the power imbalance is such that the person felt compelled to sign the order.
Money should not buy silence when there has been wrongdoing – and do you know what would work better? A radical idea I know but I’m going to run with it. Treat people properly then you don’t have to buy their silence.