Watching the Stormy Daniels interview on 60 Minutes reminded me of why Non-Disclosure Agreements or NDAs are often a very bad idea. That’s because an NDA is an attempt to solve a communications problem with a legal solution.
I frequently come across NDAs in my issues management practice and they seldom work to the benefit of my clients. In fact, in three major cases, they hindered my clients from telling their side of the story while details were “leaked” to the media. In one situation, one-sided information was slowly revealed over many weeks as the story gained traction.
Lawyers can threaten court action but no financial settlement will repair the reputational damage done when the other side controls the narrative. I’m not a lawyer but I often wonder why there isn’t a “right to respond” written into NDAs or a clause to make it void if certain details are released. In the cases I’ve worked on, the side trying to “do the right thing” and respect the NDA has taken the greater hit.
One of the reasons NDAs fail is that they try to do too much. Some prohibit each side from even acknowledging their existence. This is not a good communications strategy. And, in a WikiLeaks world, even the deepest of secrets are being fed to journalists.
Before agreeing to an NDA, both sides should consider the public interest and the likelihood that certain information could become public regardless of the agreement. Both sides might agree on a joint public statement which answered any obvious questions. If the issue is of public concern, using a legal document to hide information only heightens the public interest. A better approach would be to release as much information as possible and then explain why other information cannot be released.
And if one side does decide to pursue legal action when an NDA is breached it will mean months, if not years, of court proceedings that will only add further harm to a damaged reputation.