CAROLINE CRIADO PEREZ: Axing NDAs isn’t the answer
PUBLISHED: 12:00 02 November 2018
2015 Mike Marsland
The allegations against Sir Philip Green have led to calls from many feminists for a ban on ‘secrecy clauses’. But Caroline Criado Perez is not a fan of such an approach.
When I first heard about the Philip Green allegations, I was definitely part of the “ban NDAs (non-disclosure agreements)” crowd. It’s a tawdry story, one that is becoming tiresomely familiar in the #MeToo era. What we know so far is that the billionaire owner of Arcadia, the group that sells clothes to teenage girls via its brands including Topshop and Miss Selfridge, spent half a million pounds trying to prevent the Telegraph publishing a story about the various silence-buying payouts he has made to former employees who had accused him of sexual harassment and racial abuse.
We don’t yet have full details of exactly what this behaviour constituted, because although Lord Hain used parliamentary privilege to name Green, the interim injunction still holds. Sir Philip has, however, strenuously denied any “unlawful sexual or racist behaviour”.
The Telegraph story re-ignited cross-party calls for NDAs to be scrapped in cases of sexual harassment. “It cannot be right that the rich can buy silence,” said Labour MP Jess Phillips.
Conservative MP Maria Miller has called for NDAs to be outlawed from employment severance agreements altogether. A petition entitled ‘Change the rules to stop powerful people paying to silence victims’ has, at the time of writing, more than 126,000 signatures.
And I agree. The current system, where men get to repeatedly abuse, cover up, and abuse all over again, is untenable. But while it’s clear that something does have to change, I’ve reluctantly come to the conclusion that outright banning NDAs may not be the way to do it.
For a start, a lot of the things we find objectionable are in fact already illegal. An NDA can never prevent a victim from reporting illegal behaviour to the police, for instance, and it can’t prevent whistleblowing. An NDA is also unenforceable if an employee isn’t given independent legal advice. This of course doesn’t prevent unscrupulous employers from trying their hand, but the issue here isn’t exactly the law, it’s clarity around the law. It’s the imbalance of power that comes from employers exploiting their employees’ ignorance. That is what needs to be addressed.
This is not to say that I don’t entirely agree with Jess Phillips. It isn’t right that rich men can buy silence. But it’s also true that their silence is the one bit of leverage victims of abuse have. It’s vile, it’s distasteful, but it’s reality. And it’s worth noting that in this particular case we know that at least two of the five women involved categorically did not want Sir Philip named. They didn’t want the sordid details of what happened to them made public.
And that is their right. Silence allowed them to move on, to live their lives free of being known as ‘the woman that happened to’. To not have future employers know that she took her past employer to court. Irrespective of my feminist scruples that baulk at a man being able to buy his way out of justice, I don’t have the right to force a victim to take on that fight. And it would be a fight – one that may take up years of her life and that she may well lose.
Of course, there are other considerations. There are competing claims on justice. And where NDAs are covering up serial perpetrators, I’m afraid my feminist scruples fall on the side of naming the perpetrator. Protecting future victims from being abused has to be non-negotiable.
So where does that leave us? Well, I have a modest proposal that I stole from a privacy lawyer who… has asked not to be named.
Keep NDAs, says my lawyer friend, but introduce a procedure whereby serial perpetrators can be detected. Set up an independent public body with which all NDAs must be registered in order to be legally binding. The registration must include full details of the allegations, including the names of those involved.
If an alleged perpetrator is named in, say, three or more NDAs, an investigation can be triggered. Similarly, an investigation would be triggered if a single company is implicated in a certain number of NDAs. If the investigation finds that it is in the public interest for the perpetrator or company to be named, it can send an enforcement notice, which can be challenged in court. No victims would ever be named without their consent.
This seems to me an elegant solution to an inelegant problem full of competing rights. Victims don’t lose their leverage, but serial perpetrators don’t get to carry on abusing with impunity. And we all get to live in a slightly less creepy world. How about it, Theresa May?