InstitutionalDUAL-USE

NDAs as Silencing Tools

What it is

Using non-disclosure agreements not to protect legitimate trade secrets but to prevent victims, whistleblowers, and critics from speaking about institutional wrongdoing.

How it works

NDAs are legitimate tools for protecting proprietary information. But they are increasingly used in settlement agreements to silence victims of harassment, discrimination, or fraud. The financial settlement comes with a permanent gag order, preventing the public from learning about patterns of misconduct and preventing future victims from being warned.

Real-world examples

  • •Harvey Weinstein using NDAs in settlement agreements that prevented victims from warning future targets.
  • •Companies requiring departing employees to sign broad NDAs that prevent them from discussing workplace conditions.
  • •Universities settling harassment complaints with NDAs that prevent disclosure to other students.

Historical case studies

The UK parliamentary inquiry into non-disclosure agreements

2019UK Parliament

Prompted in part by Zelda Perkins, a former assistant to Harvey Weinstein who broke a 1998 agreement that had barred her from speaking even to a doctor or therapist without restrictions, the House of Commons Women and Equalities Committee examined the use of confidentiality clauses in discrimination and harassment settlements. It found that they were used routinely to cover up unlawful conduct, that employees often signed without understanding that they could still report crimes, and that the imbalance of legal resources made the terms difficult to resist. The committee recommended legislation to stop their use to silence victims.

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The Speak Out Act

2022US Congress

Passed with broad bipartisan support and signed in December 2022, the Speak Out Act makes non-disclosure and non-disparagement clauses unenforceable in sexual harassment and sexual assault disputes when the clause was agreed before the dispute arose, for example in an employment contract signed on the first day of work. Congress found that such clauses "perpetuate illegal conduct" by keeping victims from warning others. The law does not reach confidentiality terms negotiated in a settlement after a claim is made, which remain common and which many claimants themselves ask for.

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Ethical guidelines

Where the line is

Non-disclosure agreements protecting trade secrets or mutual privacy are legitimate. They become manipulation when they are used to silence reports of wrongdoing, harassment, or safety risks, or are imposed on people with no real ability to refuse.

  • ●NDAs should protect legitimate business secrets, not institutional misconduct.
  • ●Using NDAs to silence victims creates a system that protects predators and endangers future victims.
  • ●Many jurisdictions are now limiting the use of NDAs in harassment and discrimination contexts.

How to defend against it

  • ►Before signing an NDA, have an independent attorney review it — understand exactly what you're giving up.
  • ►Know your jurisdiction's limits on NDAs — many now carve out exceptions for reporting criminal behavior.
  • ►Support legislation that restricts NDAs in the context of harassment, discrimination, and public safety.

DISARM framework

How analysts would file this in the open DISARM framework (v1.6.1, CC BY-SA 4.0). Closest matches, mapped by Persuasion Lab.

T0139.002Silence

References

  1. Kantor, J., & Twohey, M. (2019). She Said: Breaking the Sexual Harassment Story That Helped Ignite a Movement. Penguin Press
    Journalism of record for the entry's central example: the reporters document a series of settlements with non-disclosure clauses that kept Harvey Weinstein's accusers silent for decades, so that each new victim was unaware of the pattern — the entry's claim that gag orders prevent warning future victims.
  2. United States Congress (2022). Speak Out Act. Public Law 117-224
    Government document confirming the entry's claim that NDAs have been used to silence victims: the Act's findings state that non-disclosure and non-disparagement clauses have been used to prevent survivors of sexual harassment and assault from speaking out, and it makes such pre-dispute clauses unenforceable in those disputes.
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