Brand Case Shows Why “Sinister” NDAs Must Be Reformed

Russell Brand was sentenced to 10 years in prison on Monday (Alamy)

3 min read12 November

The conviction of Russell Brand should lead to major reform of how gagging orders are used, the chair of the culture committee has told PoliticsHome.

Caroline Dinenage, Conservative MP for Gosport, said non-disclosure agreements (NDAs) are being used in “sinister” ways in the media and entertainment industries, “to stop people coming forward with legitimate concerns”.

Following a series of scandals involving high-profile figures in recent years, a new body was set up to protect workers in the creative sectors, the Creative Industries Independent Standards Authority (CIISA). However, there are fears that the widespread use of NDAs is still preventing whistleblowers from coming forward.

Speaking on The Rundown podcast by PoliticsHome, Dinenage said people who take up jobs in TV and film are sometimes asked to sign confidentiality clauses, which then stop them from speaking out about mistreatment.

On Monday, entertainer Brand was sentenced to over 10 years in prison for one count of rape and three counts of sexual assault after an investigation by The Sunday Times and Channel 4.

A day later, entertainer David Walliams was revealed as the celebrity who had tried to get a legal injunction to prevent The Guardian and ITV from publishing stories accusing him of sexual misconduct and grooming. He denies any wrongdoing.

There are now renewed discussions about the difficulties facing people in the creative industries in reporting mistreatment, with Dinenage telling PoliticsHome: “The issue that I’ve raised in the chamber is around the use of NDAs and confidentiality clauses.”

“I’m very concerned about this,” the committee chair said.

“It just feels to me that they are frequently being used in the media and entertainment industry in particular to stop people coming forward with legitimate concerns. Workers way too often feel forced to sign them to secure employment, but that then silences them from reporting potentially criminal or unlawful misconduct.”

She said the CIISA, which last month set up a new independent online reporting service, has warned that gagging orders will prevent people from bringing concerns to them.

“That’s properly sinister, isn’t it?” Dinenage added. “Gagging potential victims from speaking out through an NDA is a really unpleasant world to be living in.”

The government has said it will look again at exemptions for the way NDAs are used in light of recent events, but the Tory MP said she would like to see changes in the employment rights bill being brought forward to “reflect the concerns that this case has raised”.

“The fact is we’re in a situation where the law should protect victims, not shield wrongdoing.

“And yet, in so many cases, the law is being used to further offending behaviour, to intimidate victims, in some cases, just put a bit of sand in the wheels of investigative journalists who are trying to find out information to slow them down a bit, stack up a load of money against them to make it unbelievably expensive to pursue what they’re doing.

“This is all wrong, isn’t it?

“And this is where I think now is a unique opportunity for government and others to look at how this is working and pull out the bits that are just enabling wrongdoing and not protecting victims.”

Chair of the Women and Equalities Committee, Olivia Bailey, has urged ministers to extend the ban on misuse of NDAs so it applies to freelancers, volunteers, and fans, not just employees. The government should also extend other workplace protections and strengthen the industry regulator, the Labour MP argued in a piece for The House.

The Rundown is presented by Alain Tolhurst, and is produced and edited by Ewan Cameron for Podot