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‘I had to start over, alone and silenced’: the fight to end NDA abuse

·4-min read

Anna* was 28 and loving her career in the tech industry when she says a business trip changed everything: she was raped by an older male colleague. She reported the assault to her boss, and the police – but instead of getting the help and support she desperately needed from her company, she says she was pushed into signing a non-disclosure agreement (NDA) designed to stop her ever talking about what had happened.

“I signed a paper and that specific battle ended, but the fight was nowhere near over,” she writes in a testimony about her experience. “I was forced to start everything over with my head still underwater, alone and silenced.”

Anna is one of hundreds of women who have got in touch with Zelda Perkins, the former assistant to the disgraced media mogul Harvey Weinstein and the first person to break an NDA signed with him. Her testimony, alongside that from others from around the world, has been posted on a new website, Can’t Buy My Silence, which aims to reveal the misuse of NDAs, in the same way that the site Everyone’s Invited exposed sexual harassment in schools.

Perkins argues that government promises have not been kept and that NDAs are still commonly used.

“This is still happening every day. Right now,” she says. “And the personal repercussions of that for people who are living under that shadow are catastrophic. Which of course, nobody understands, unless they’ve been in that situation.”

A small study of 400 people by Speak Out Revolution, an organisation that campaigns against the silencing of people who have faced abuse in the workplace, found that 21% had signed an NDA and 10% said they couldn’t say for legal reasons. Of those respondents, 90% said it had a negative impact on their mental health.

As part of the push to get NDAs back on the agenda, the Conservative MP Maria Miller, who investigated NDA misuse as chair of the women and equalities select committee in 2018-19, this week launched a 10-minute rule bill that would prevent NDAs from being used to cover up illegal activity and abuse against employees.

“NDAs have been weaponised to uphold a culture of abuse,” says Miller, who added that the gagging orders continued to act as “a safety net for employers to routinely cover up abuses without consequence”.

The campaign, launched with the Canadian author and NDA whistleblower Dr Julie Macfarlane, is part of a new international push to change the law. Its website already contains a host of testimonies from a broad range of people living under NDAs – from teachers who have lost their jobs after whistleblowing on exam cheating, to victims of sexual harassment and pregnancy discrimination.

“NDAs were designed to help protect sensitive and confidential information, not as a legal document that protects abusive behaviour,” say Perkins. “I don’t even understand why I have to argue that really. It’s absolutely bonkers.”

But while other countries are taking action – Senator Lynn Ruane in Ireland is pushing for new legislation, as are lawmakers in some US states, Canada, and Australia – the UK has been left behind, argues Perkins.

Recommendations by the women and equalities select committee were roundly ignored and a 2019 consultation by the Department for Business, Energy and Industrial Strategy (BEIS) was a “box-ticking exercise”, she says. “I was in the consultation. I felt they were not interested in what anyone who had signed an NDA had to say – they were only interested in what union people and lawyers had to say.”

Some organisations such as the BBC, Condé Nast and University College London changed their policies, while regulators such as the Solicitor’s Regulatory Authority in England and Wales have issued new guidance – but progress has been glacial.

“We need to show the British government that this is moving elsewhere,” says Perkins. “They should be leading the way, not on the back foot.”

A BEIS spokesperson said: “We will not tolerate the use of NDAs as a means to silence and intimidate victims, or to prevent them speaking out against workplace malpractice.

“Our thorough consultation on the misuse of confidentiality clauses was categorically not ‘a box-ticking exercise’, and we remain resolutely committed to implementing legislation to crack down on these practices when parliamentary time allows.”

For Anna, the repercussions of signing an NDA remain with her every day. Should she break any aspect of the gagging order – which forbids her from claiming her abuser or company did her any harm, pursuing other legal claims or seeking compensation, helping anyone else make a claim or even publicly referring to the NDA – she would be “fined” $20,000 for each “breach”.

It changed her whole life. “There is no positive because there was no justice, no accountability, not even an apology,” she writes. “My life changed drastically but no one else’s did and I didn’t even do anything wrong.”

*Names have been changed

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