The Linguist

The Linguist 59,6 - December-January 2021

The Linguist is a languages magazine for professional linguists, translators, interpreters, language professionals, language teachers, trainers, students and academics with articles on translation, interpreting, business, government, technology

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10 The Linguist Vol/59 No/6 2020 thelinguist.uberflip.com FEATURES Are Non-Disclosure Agreements always a bad sign, asks Sue Leschen N on-Disclosure Agreements (NDAs) are variously known as confidentiality, disclosure, proprietary information and secrecy agreements – or even as 'gentlemen's agreements'. They are legal contracts between at least two parties to protect confidential information which one or more of them wish to restrict further access to by third parties. They usually protect information comprising personal information, trade secrets and private business information. NDAs are commonly used by employers to prevent employees from disclosing confidential information to their competitors. However, freelancers are increasingly being asked by language service providers (LSPs) to sign them in the spirit of what sometimes looks and feels like a quasi-employment relationship. Is this yet another blurring of employment/self-employment boundaries in addition to less serious ones, such as requests for our availability details over public holidays? Many NDAs contain non-competition clauses (also known as non-compete restrictive covenants), which are a classic example of this sort of attempt to control an employment relationship. Their purpose is to restrict an employee from entering into any sort of competition against their former employer once the employment has ended, for example by working for the 'opposition'. As far as freelancers are concerned, such clauses may be a fetter on our freedom and flexibility to work with (not for) others. The stranglehold will be even more acute where we have succeeded in carving niches in specific sectors. TYPES OF AGREEMENT The three main classifications of NDA are unilateral (one-way); mutual (two-way); and multilateral. The majority are unilateral and these are the ones that clients are most likely to ask freelancers to sign. They involve two parties and apply where only one party anticipates disclosure. Mutual agreements are used where both parties want to protect their information, while multilateral agreements involve three or more parties. The party who intends to share information is known as the disclosing party (typically the client in this case) and the party receiving the information (e.g. the freelancer) is known as the receiving party. NDAs can be valid for various periods but terms of between one and ten years are common in Europe. Five-year terms are more common in the USA. Some are (worryingly) vague as to duration and may be expressed to last "indefinitely" or "as long as possible", or to expire "at the end of the assignment". Questions we should be asking ourselves are do we want to be tied to NDAs which may never end, and if an NDA expires at the end of an assignment, when does that assignment actually end – upon delivery or after payment? We also need to be vigilant when an NDA ends but some of the confidentiality obligations continue, perhaps for life. This situation would be relevant where the material in question is particularly sensitive for political or other reasons, such as company buy-outs. Freelancers should be wary about agreeing to be tied up for long periods. Before we do so, we would be well advised to discuss the implications with our professional indemnity insurers, because such agreements could negatively affect our chance of gaining work with other clients in our chosen sectors. TO SIGN OR NOT TO SIGN? © SHUTTERSTOCK

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