Will Agencies Stop Silencing Victims and Commit to Fair NDAs?

Non-disclosure agreements - NDAs - are part of the day-to-day of the advertising industry - people sign them without thinking, when they start a new job or take on a new client or start working on a top-secret project. Sometimes we even sign them just to access the offices of a particularly secretive company.

But according to Outvertising’s Jerry Daykin and Shilpen Savani, partner at law firm Gunnercooke, NDAs are also being used to muffle victims of harassment. But a new campaign, ‘Make NDAs Fair’, launched at the Creative Equals RISE 2022 conference shows that this doesn’t have to be the case. 

“What we’ve learned over the last year or two - some of us have known for longer I expect… is that there’s a darker side to how NDAs are used,” said Jerry Daykin, explaining that they have been used to mount what is effectively a “systematic silencing” of the vulnerable and victims. 

A cross-industry group was galvanised into action nine months ago following the publication of Zoe Scaman’s viral article ‘Mad Men. Furious Women’, in which she shared an avalanche of anonymous experiences of sexual harassment from women working in the ad industry. In the piece, she said NDAs “have become the most pernicious and pervasive method with which to keep us quiet”.

The group has two main aims: to educate around the misuse of NDAs to equip more people in the industry to challenge them and to call on marketing organisations to include a fair NDA clause within their policies.

With the help of legal experts, including Shilpen Savani, who is Dispute Resolution and Employment Partner at Gunnercooke, the group have drawn up a simple and actionable plan that can protect victims of harassment and bullying - and stop a seemingly innocuous NDA becoming a gag.

“The four asks we have are actually quite simple but they’re game changing if they’re implemented,” said Shilpen.

The group has outlined that a Fair NDA Policy should include the following:

While this campaign focuses on the problem of NDAs, the speakers acknowledged that, ultimately, predatory needs to be eradicated. In the mean time though, it’s a relatively small fix to stop NDAs enabling and protecting predators. 

The campaign is supported by partners such as NABS, Outvertising, Bloom, the Conscious Advertising Network, Creative Equals and WACL, and agencies, like QuietStorm, Seven Stars, The Elephant Room, Media Bounty and The Barber Shop. The #timeto Code of Conduct will also now include a commitment to implement fair NDAs.

Having done the legwork, it’s now the industry’s turn to act as the speakers threw down the gauntlet to agencies large and small, and holding companies. “For those employers and decision makers out there, I really want you to pay close attention because these are small measures but they’re game changing,” said Shilpen.

Find out more about Fair NDAs and download a draft Fair NDA clause at the NABS website here.