GAGGING ORDERS NEED TO BE SILENCED

The unravelling horror story of alleged rape and sexual abuse involving the former Harrods owner Mohamed Al Fayed, contains a familiar trademark. Al Fayed used non-disclosure agreements (NDAs) to gag victims of his sexual crimes. NDAs seem to be the weapon of choice for the super-rich and for big, international corporations who want to hide something. They are frequently used to silence whistle-blowers and to provide protection from accusations of sexual or racial abuse, harassment and workplace bullying. NDAs can have legitimate objectives, such as protecting personal privacy or ensuring that confidential business information is not disclosed to a third party. But under the guise of these genuine concerns, the intrinsically secretive nature of NDAs allows their cynical exploitation by sexual predators, bullies, and even corporate crooks, and must surely call into question the use and enforceability of such agreements in these contexts.

Although, under UK law, NDAs cannot be used to prevent someone from co-operating with a criminal investigation or reporting misconduct, they often are. The fear of protracted legal action and potential crippling costs is often enough to secure the ongoing silence of even the most ill-treated or physically molested victim. This was clearly the case with the dozens of women, some as young as 15, who claim they were raped or physically assaulted by the Egyptian tycoon, Mohamed Al Fayed, when they worked at Harrods or accompanied their “monster” boss on trips to his luxury apartment building in London, the Ritz Hotel in Paris, his opulent villas around the world and his superyacht. Having signed NDAs as a condition of service, they felt unable to reveal the abuse that Al Fayed had inflicted on them until after his death, aged 94, last year.  He is just the most recent multi-millionaire/billionaire to have ruthlessly exploited NDAs for predatory purposes. In America, Harvey Weinstein, the disgraced Hollywood producer, used NDAs widely to silence victims of his sexual misconduct. Following one of the most high-profile cases that contributed to the MeToo movement, 70-year-old Weinstein is now serving a 23-year jail sentence for rape and sexual assault.

Former U.S. President Donald Trump and his business entities have used NDAs extensively with staff and associates, including campaign workers, to keep personal and business matters confidential, while Fox News, Trump’s favourite media network, has faced allegations of using NDAs to prevent employees from discussing sexual harassment claims and other internal issues publicly. Philip Green, the British retail magnate and former chairman of Arcadia Group, was involved in controversies where NDAs were said to be used to silence alleged victims of sexual harassment and racial abuse. Philip Green has “categorically and wholly” denied the allegations. The American rapper P. Diddy, took NDAs one stage further by insisting on watertight agreements being signed by his close friends and colleagues, effectively gagging them for up to 70 years. The rapper’s homes in Los Angeles and Miami were recently raided by the Department of Homeland Security in an investigation tied to alleged sex-trafficking concerns.

Also in America there has been a public outcry following revelations that private hospitals have forced patients who have won medical malpractice cases to sign NDAs, so that they cannot harm the hospital’s reputation by disclosing the negligence or medical ineptitude they have suffered. Even our own sacred NHS has used NDAs to settle disputes involving whistle-blowers and claimants, often related to workplace bullying, harassment, or discrimination, while in the EU, the European Commission has used NDAs when dealing with whistle-blowers or departing staff, to ensure confidentiality around internal processes or sensitive information. Protecting and supporting whistle-blowers through the law and improved HR practices will ultimately enhance legitimate business activity. When the Volkswagon emissions scandal came to light in 2015, which cost the company billions of pounds, it was noted then that there was a remarkable absence of whistle blowing. There has to be mechanisms put in place that make it more rewarding to call out wrongdoing than to keep it secret.

Since the MeToo scandal, NDAs have been viewed as legal instruments that attempt to conceal misconduct. Debates about their ethical implications are now commonplace. Some EU Member States are considering legislation to limit their use and enforceability in these contexts. There is a growing awareness that NDAs, or “gagging orders”, that force a person to observe long-term or even permanent silence, even if the release of the information they have could be in the public interest, should be banned. Such confidentiality agreements are an extremely powerful legal tool that, if used unscrupulously, particularly against vulnerable people who may not be aware of what’s entailed, can have serious consequences.

According to a BBC report in 2020, around one third of UK universities at that time employed NDAs to ringfence student grievances and resolve sexual harassment complaints, although many believed that the existence of these agreements simply perpetuated the abusive behaviour. Students whose claims of sexual assault were settled by the Universities, sometimes with a financial payment, were often made to sign an NDA to protect the institution’s reputation. Scotland’s universities have been united behind a position never to use NDAs or “confidentiality clauses” in cases of harassment since 2019. Meanwhile in August this year, the Office for Students (OfS) announced new requirements for universities in England to protect students from harassment and sexual misconduct, including a ban on NDAs, which came into force on 1 September. So, bit by bit, the system is being improved and reformed.

All the recent high-profile cases involving NDAs have served to make the public deeply wary of their ethical legitimacy. Surely it is not beyond the wit and wisdom of our legislators in London and Edinburgh to come up with a system that enables NDAs to continue to be used for purely commercial or business purposes, while outlawing their exploitation by predators and rich criminals? What is essential is that NDAs must never again be allowed to silence whistle-blowers, or women who have been sexually abused, or people who have suffered discrimination in the workplace.