When is an NDA not an NDA?

This is not the start of a bad joke, although at points over the last couple of weeks we might be forgiven for thinking that it was.

So, when is an NDA not an NDA?

Seemingly when the person who signed it is a journalist and decides it is more important to publish what she has agreed not to disclose that it is to keep schtum!

Albeit our former Health Secretary might (does!) disagree.

Whilst we cannot comment on the terms of the Non-Disclosure Agreement, or NDA as they are more commonly referred to, between Ms Oakeshott and Mr Hancock, what is known is that there was such an agreement in place under which Ms Okeshott agreed to keep confidential and not disclose information which she was given access to by Mr Hancock unless it was relevant for his book, Pandemic Diaries.

Ms Oakeshott appears to have breached the terms of the NDA by enabling the Telegraph to publish excerpts from over 100,000 WhatsApp messages she was given access to by Mr Hancock for the purposes of her assisting with the authoring of Pandemic Diaries.

What is a Non-Disclosure Agreement

A non-disclosure agreement is an agreement between two or more parties which records the terms upon which the parties will disclose confidential or sensitive information to the other(s) and the terms upon which the disclosure is made.

Usually, the terms are that the receiving party will keep the information disclosed confidential, except in certain limited and specified circumstances.

An NDA is a legally binding contract and there can be serious sanctions if you break one, depending on the level of damage caused by the breach.

NDAs are commonplace across many fields and can be used, by way of example, by businesses to protect confidential information, by celebrities with members of staff to protect the personal lives and, in the case in question, by politicians engaging a ghost writer to write their autobiography.

In the case of a breach of an NDA there are various options open to the disclosing party:

• Send a “cease and desist” letter – such a letter does as the title suggests and demands the breaching party to “cease and desist” from further breaching its obligations in disclosing additional information which is covered by the NDA.
• Take out an injunction – the disclosing party can institute legal proceedings to obtain an injunction against the breaching party which would seek to have a court order than no further disclosures occur. A breach of such an order attracts additional sanctions as such disclosures when a court order prohibiting them exists could constitute a contempt of court.  Contempt of court carries with it an unlimited fine and a potential custodial sentence.
• Sue for damages – the disclosing party can sue the breaching party for any quantifiable losses they have suffered as a result of the breach.
• Seek an account of profits – the disclosing party can seek to recover from the breaching party any profits they made as a result of the breach.

Comment

Whilst there are various options open to Mr Hancock in the present circumstances, Ms Oakeshott appears to stand by her stance that disclosure of the WhatsApp messages was in the public interest.

What Mr Hancock chooses to do in response is a matter for him and his lawyers, Tom Barnard Commercial Dispute Resolution Partner, comments as follows:

“NDAs remain very much an important tool in a commercial armoury in relation to protecting confidential or sensitive information.

"Whilst it may appear to onlookers that they are not worth the paper they are written on in the current circumstance, when enforced properly they serve to do their job well.

"For those tempted to breach their obligations under an NDA, the sanctions can be both costly and serious, regardless of how trivial you may consider the breach to be, and in the majority of cases it is not worth testing the water to see what the reaction and response is.”

Should you have any queries in relation to NDAs please do not hesitate to contact the Commercial Dispute Resolution Team.