When to Worry About an NDA

When to Worry About an NDA

I once signed an NDA that said I couldn’t even say that a meeting had taken place to sign the NDA. And it didn’t. There was no meeting. Why do you ask? Did you hear something? Who were you talking to?

A non-disclosure agreement (NDA) or confidentiality agreement is standard and reasonable business practice. These are not sinister requests. The other party is just setting up a detailed expectation of how their information will be treated. But not all agreements are created equal. Here’s the why and the what-to-watch-for of NDAs.

Why to Sign an NDA

Writers and businesses want members of their team to sign an NDA to prevent others from learning about their intellectual property. While others might say “no one but their mother is interested in this information,” the owner is doing what they think is necessary to protect their interests. The NDA clause impresses upon all parties just how serious the “don’t talk about this” request is.

Publishers often ask for an NDA so information about their “revolutionary book” won’t leak; maybe it’s a controversial topic or writer they’re saving for a big reveal. Businesses ask for one so the competition can’t find out about their “revolutionary product.” Perhaps it’s a trade secret; meaningless to you but sought by the competition.

How to Honor an NDA

To be fully safe while working on materials you’ve signed an NDA for, treat the information like a matter of global security. Don’t mention it. Period. Spouses get nothing. Kids get nothing. The accountant gets nothing. The dog never hears a thing. Continue…

Only people who you have been given permission to discuss the project with (in writing) hear a thing. That includes their own company employees.

When you need to check a style point with a colleague, the content had better be disguised beyond any possible recognition. There will be no outsourcing or subcontracting without written permission, and these you choose will sign an equivalent NDA too, at minimum.

Protect their files. Look into data security in your office, while travelling, and anywhere else you may be. Look into physical security for your location and for file storage while outside the office.

Parts to Negotiate in an NDA

While NDAs can be very simple, sometimes they pose a risk to the editor signing it. A court might decide that the terms of an NDA were unreasonable, but even having them come to that conclusion could cost an expensive legal defense. To protect yourself, these are aspects of an NDA that you should review with your lawyer.

Proof: Does the agreement make you liable for even the appearance of an information leak? Do accusations trigger the terms or must a breach of confidentiality proven in court?

Jurisdiction: If the contract is subject to the laws somewhere other than where you are, do you understand their laws enough to be confident in your rights and in the consequences?

Liability extent: Does it make you responsible for all costs (e.g., legal costs and lost income) if the information leaks, even if it’s not proven to have come from you?

Duration: Is there an expiry date? Can you talk about even being part of the process once the thing you worked on is made public? (If they do say you can add it to your resume after, for example, get that in writing!)

Security: Do the terms prohibit use of cloud storage or transfer services? Do they require you to use encryption, security systems, or otherwise ensure the privacy of their information while it is in your possession? Can you get your computer fixed while it contains their files? Might you have to verify the physical location of any off-site servers you use, as those open up legal rights and exposures related to the location they are in? (Note that ignorance of implications or risks is not a defence that courts appreciate, in the legal sense. Clients might reasonably expect that you know what you’re doing in this regard and others.)

Scope: Can you even list them as a client? Can you say “I’m working on a manual for XYZ Inc.” but not say what the manual is for? What if you learn about illegal activity from the contents; does this contract gag you?

Know what kind of legal responsibility you are prepared to accept, and what the consequences are if you break the agreement (even by mistake). Be prepared to walk away if you can’t come to an agreement that your lawyer assures protects you as much as it protects them.

More resources

Other contract terms should give editors and writers pause. Here’s a Globe & Mail article about non-compete clauses (a different but related contract issue) and why they (usually) don’t hold up in Canadian court. For a guide to other contract terms, check out the book The Paper It’s Written On, by Cather and Margulis which, while written for the USA, still has a lot of pertinent advice and at the least helps make us aware of what contract terms we should ask our lawyers about.

Photo by Mateus Lunardi Dutra, used under CC BY-2.0 license.

Leave a Reply