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?
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