(Not-super) injunction, and names

thumpingrug

TTony said:

ICBM said:

The thing that makes this case important is that the named person has apparently used Non-Disclosure Agreements to silence allegations of a possible criminal nature, and that's what the Telegraph has been investigating and would have published without the injunction.

They are Non-Disclosure Agreements.

Binding contracts, entered into between consenting parties, each of whom would have had legal advice (because otherwise they are not binding).  So, the named person has not "used" NDAs to silence allegations.  The parties concerned have reached an agreement whereby those allegations will not be examined in legal process.  

Is it all messy and distasteful?  Yes.

Have some - potentially - injured parties accepted money in lieu of "justice"?  Potentially.

Have their actions enable further trangressions?  Again, potentially, but that was their #ImAllrightJacqueline rather than #MeToo choice.

Do we (the forum) want to get into those discussions?  No.

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities.  Its one think to have a NDA around commercial information that could do financial or reputation damage, but when they are used to protect an individual from criminal prosecutions thats when it becomes a public interest mater.  

HAL9000

thumpingrug said:

TTony said:

ICBM said:

The thing that makes this case important is that the named person has apparently used Non-Disclosure Agreements to silence allegations of a possible criminal nature, and that's what the Telegraph has been investigating and would have published without the injunction.

They are Non-Disclosure Agreements.

Binding contracts, entered into between consenting parties, each of whom would have had legal advice (because otherwise they are not binding).  So, the named person has not "used" NDAs to silence allegations.  The parties concerned have reached an agreement whereby those allegations will not be examined in legal process.  

Is it all messy and distasteful?  Yes.

Have some - potentially - injured parties accepted money in lieu of "justice"?  Potentially.

Have their actions enable further trangressions?  Again, potentially, but that was their #ImAllrightJacqueline rather than #MeToo choice.

Do we (the forum) want to get into those discussions?  No.

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities.  Its one think to have a NDA around commercial information that could do financial or reputation damage, but when they are used to protect an individual from criminal prosecutions thats when it becomes a public interest mater.  

Agreed. As far as I can see, what 'He Who Shall Not Be Named' is alleged to have done is illegal - others have been locked up for similar. Sure it's an AGREEMENT, but between two parties where the balance of power/money is very much skewed in favour of one of those parties. If you can take out an NDA for harassment, then where does it stop? Theft? GBH? Arson?

Okay, the law is the law but this does look like something that disproportionately looks after the rich and powerful.

richardhomer

NDAs have a legitimate purpose most of the time - eg you will be asked to sign one if you’re thinking of buying a business and want access to their accounts, staff remuneration, business plan, etc, in order to ensure you don’t share commercially sensitive information. They’re common in creative environments - such as the film industry.

It seems their purpose here is more sinister - which may well be tested in court.

Gassage

Freebird said:

proggy said:

Freebird said:

Gassage said:

Fuengi said:

Do my Wow and Wisdom frets from the thread still count? 

I got 5 LOL's for my Hughie Green joke

Hughie who? I've never heard of him

Would you open the box?

It depends what colour it is.

Any Colour You Like.

Chalky

richardhomer said:

NDAs have a legitimate purpose most of the time - eg you will be asked to sign one if you’re thinking of buying a business and want access to their accounts, staff remuneration, business plan, etc, in order to ensure you don’t share commercially sensitive information. They’re common in creative environments - such as the film industry.

It seems their purpose here is more sinister - which may well be tested in court.

But NDAs don't override criminal investigations.  So either a criminal act occurred or it didn't.

ICBM

TTony said:

They are Non-Disclosure Agreements.

Binding contracts, entered into between consenting parties, each of whom would have had legal advice (because otherwise they are not binding).  So, the named person has not "used" NDAs to silence allegations.  The parties concerned have reached an agreement whereby those allegations will not be examined in legal process.

Do you really believe that it’s consenting in the real meaning of that? Or is it more likely that the named person put enormous pressure on the other party to accept, with the threat that if they don’t they will use all their wealth, power, access to the best lawyers etc, to wreck the other person’s life? The pay-off is actually part of the threat, not a benefit to the injured party. The amounts will mean nothing to the named person, but by accepting it, the other party has been trapped.

It’s just one step away from an offer you can’t refuse, basically.

Chalky said:

But NDAs don't override criminal investigations.  So either a criminal act occurred or it didn't.

If they prevent the other party making a complaint then there will be no criminal investigation.

That’s why it matters that this is known about, and hopefully the use of them to hide potentially criminal acts is outlawed.

siremoon

At this point in time the individual in question has not been found guilty of anything, as far as I know they haven't been arrested or charged.  As we have discovered from Operation Yewtree and its offshoots not everybody named by the media is charged and convicted and the reputation of those people invariably suffers as a consequence despite them being innocent.  The Cliff Richard case is probably the most high profile example of that.  There is a tendency for people to assume that the naming of someone automatically makes them guilty which is potentially prejudicial to the fairness of any subsequent trial.

There are allegations which may or may not turn out to be true.  Ultimately that will be for a court to decide, not the media, not those covered by parliamentary privilege and not contributors to a website.

TTony

thumpingrug said:

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities. 

An NDA can be used to silence or cover up whatever the agreement parties decide to cover.

Whether it should be used to silence or cover up illegal activities is a different question.

In some cases, illegal activity is clear and obvious or can be proven with irrefutable evidence.  In other cases, whether or not an illegal activity took place depends on whose account of an event is deemed the most believable, with "innocent until proven guilty" meaning that the burden of proof is on the accuser rather than the defendant.

Which is why #MeToo happened (though there's now an argument - and apologies for the Trumpism - that an accused is seen as guilty until proven innocent).

Pre #MeToo (which is when most, if not all, of these events occurred), agreeing to an NDA was pretty much the only way that  someone who had allegedly suffered  in one of these illegal activities could receive any compensation.   Yup, it's "hush money" and enabled a perpetrator to carry on perpetrating.  But - pre #MeToo - I can understand why some decided that it was the best or only option for them.

Forcing an individual to report their suffering of an illegal activity potentially adds insult to injury.  They may well prefer to avoid the stress, hassle and public scrutiny that a legal action would involve them in.  People who experience incidents like that deal with them in different ways.    Saying "an NDA is wrong, report it" wouldn't necessarily lead to them reporting it - they might just stay quiet and there's no consequence to the perpetrator.

So, it's messy and distasteful (as I said above) but you can't force someone to report their having suffered (allegedly) an illegal activity.

ICBM

siremoon said:

At this point in time the individual in question has not been found guilty of anything, as far as I know they haven't been arrested or charged.  As we have discovered from Operation Yewtree and its offshoots not everybody named by the media is charged and convicted and the reputation of those people invariably suffers as a consequence despite them being innocent.  The Cliff Richard case is probably the most high profile example of that.

That’s true, but Cliff didn’t use NDAs to silence people. The very fact these exist in this case prove there’s something to hide.

I trust the Telegraph’s months of research far more than the BBC’s sensationalist reporting too.

The named person may or may not be guilty, but if a crime has potentially been committed then the process of law needs to work as it should, not be blocked by supposed ‘agreement’ between parties of enormously different power, which is the issue here.

I completely agree that if he had been charged in the first place then he should remain anonymous unless found guilty.

digitalscream

ICBM said:

siremoon said:

At this point in time the individual in question has not been found guilty of anything, as far as I know they haven't been arrested or charged.  As we have discovered from Operation Yewtree and its offshoots not everybody named by the media is charged and convicted and the reputation of those people invariably suffers as a consequence despite them being innocent.  The Cliff Richard case is probably the most high profile example of that.

That’s true, but Cliff didn’t use NDAs to silence people. The very fact these exist in this case prove there’s something to hide.

I trust the Telegraph’s months of research far more than the BBC’s sensationalist reporting too.

The named person may or may not be guilty, but if a crime has potentially been committed then the process of law needs to work as it should, not be blocked by supposed ‘agreement’ between parties of enormously different power, which is the issue here.

I completely agree that if he had been charged in the first place then he should remain anonymous unless found guilty.

But, given that in the modern era, any sexual assault allegations against prominent people are pretty much immediately reported in the press - giving anonymity to the accuser but not the accused - and the irreparable damage that causes regardless of the truth of the allegations (or its absence), it's easy to understand why said prominent person might be inclined to use their resources to prevent it from getting out (ie with an NDA).

The mere fact that everyone's making the assumption that the presence of the NDAs constitutes sufficient evidence of guilt pretty much proves that.

Roland

There was a case several years ago where a nanny made an allegation about her employers, and was paid off with an NDA. She then went on to do the same thing with another family. In each case the allegations were false and malicious. In effect blackmail. I mention this to illustrate that NDAs are used by people in the public eye to avoid the pain of publicity.

At this point we don’t know whether Voldemort has broken the law. It might be that the NDA was part of a financial settlement to protect his/her reputation. It might be that the other party was pleased to have an NDA keeping his/her life private.

guitars4you

Will be interesting watching 'Have I got news for you tonight' and see how Ian Hislop 'brings it into play'

Handsome_Chris

Will people stop using the phrase Voldemort as I keep thinking of Ralph Fiennes, who is a dear, sweet man.  

thumpingrug

TTony said:

thumpingrug said:

But is the issue that an NDA should not / can not be used to silence or cover up illegal activities. 

An NDA can be used to silence or cover up whatever the agreement parties decide to cover.

Whether it should be used to silence or cover up illegal activities is a different question.

In some cases, illegal activity is clear and obvious or can be proven with irrefutable evidence.  In other cases, whether or not an illegal activity took place depends on whose account of an event is deemed the most believable, with "innocent until proven guilty" meaning that the burden of proof is on the accuser rather than the defendant.

Which is why #MeToo happened (though there's now an argument - and apologies for the Trumpism - that an accused is seen as guilty until proven innocent).

Pre #MeToo (which is when most, if not all, of these events occurred), agreeing to an NDA was pretty much the only way that  someone who had allegedly suffered  in one of these illegal activities could receive any compensation.   Yup, it's "hush money" and enabled a perpetrator to carry on perpetrating.  But - pre #MeToo - I can understand why some decided that it was the best or only option for them.

Forcing an individual to report their suffering of an illegal activity potentially adds insult to injury.  They may well prefer to avoid the stress, hassle and public scrutiny that a legal action would involve them in.  People who experience incidents like that deal with them in different ways.    Saying "an NDA is wrong, report it" wouldn't necessarily lead to them reporting it - they might just stay quiet and there's no consequence to the perpetrator.

So, it's messy and distasteful (as I said above) but you can't force someone to report their having suffered (allegedly) an illegal activity.

@TTony  Thank you for that.  It does provide a differing perspective.   Im wondering however if in situations such as these the balance of power is much more with the wealthy employer  than the lowly employee.  The employer may have insisted on the NDA at the termination of employment, along with a substantial cash settlement and has instilled on the lowly employee that they are not able to use the law in another ways or they risk action to recover the substantial cash settlement.  It may then not be a question of choice of the victim to report as the fear the consequences of loss of income.  In that way not only has the wealthy employer got away with their original activity but carries on a form of prolonged harassment of the individual by denying them recourse to criminal law by misinformation.   Clearly I have no actual idea what has gone on in the case currently in the public eye, but have encountered situations which are not to dissimilar in the past.

siremoon

ICBM said:

siremoon said:

At this point in time the individual in question has not been found guilty of anything, as far as I know they haven't been arrested or charged.  As we have discovered from Operation Yewtree and its offshoots not everybody named by the media is charged and convicted and the reputation of those people invariably suffers as a consequence despite them being innocent.  The Cliff Richard case is probably the most high profile example of that.

That’s true, but Cliff didn’t use NDAs to silence people. The very fact these exist in this case prove there’s something to hide.

The presumption there is that an NDA is only ever to prevent disclosure of something illegal.  I've signed NDAs in the past and the things I was being prevented from disclosing were completely legal but judged by the other party not to be in its commercial interests if I were to disclose them. 

ICBM

siremoon said:

The presumption there is that an NDA is only ever to prevent disclosure of something illegal.  I've signed NDAs in the past and the things I was being prevented from disclosing were completely legal but judged by the other party not to be in its commercial interests if I were to disclose them.  

I don't presume that at all, and I understand entirely why they're appropriate in that sort of case.

But they should not be used to cover criminal acts, in fact it should be specifically illegal to do so in my opinion - it's an abuse of power and of the law. That's why I think the Telegraph was right to investigate and intend to publish, and that Peter Hain was right to make it public despite the injunction.

scrumhalf

I've signed many NDAs over the years, generally when working for clients who don't want the world to know about something in the planning stages.

There's nothing remotely untoward about them, but now the process has been somewhat tainted.

digitalscream

ICBM said:

siremoon said:

The presumption there is that an NDA is only ever to prevent disclosure of something illegal.  I've signed NDAs in the past and the things I was being prevented from disclosing were completely legal but judged by the other party not to be in its commercial interests if I were to disclose them.  

I don't presume that at all, and I understand entirely why they're appropriate in that sort of case.

But they should not be used to cover criminal acts, in fact it should be specifically illegal to do so in my opinion - it's an abuse of power and of the law. That's why I think the Telegraph was right to investigate and intend to publish, and that Peter Hain was right to make it public despite the injunction.

On the basis that it's not been determined that there was a criminal act, though, you're presuming guilt without any criminal investigation and ignoring the fact that if he wasn't guilty there would be quite the motivation for spending money (given his obvious resources) and covering it with an NDA - because just an accusation is enough to destroy someone's life, as we've seen time and time again.

Blaendulais

Some female input into this thread would be useful.  Hey this is the fretboard!

ICBM

digitalscream said:

You're presuming guilt without any criminal investigation, though, and ignoring the fact that if he wasn't guilty there would be quite the motivation for spending money (given his obvious resources) and covering it with an NDA - because just an accusation is enough to destroy someone's life, as we've seen time and time again.

I'm not presuming guilt, although I do think it's quite likely. If a criminal act may have taken place it needs to be investigated, and if an NDA is used to prevent the possible victim reporting it then that is an abuse of the law.

There is also a pattern here - five separate cases. It's different from the example given above where the same *complainant* was involved in separate cases. The fact that the NDAs will have prevented any of the complainants knowing about any of the other cases also means that it's quite likely that if he is guilty, he would have been caught and stopped earlier.

In fact, if he had been charged in the first place he would have had anonymity - and I know there can be failures of that too, but it's not a reason to not investigate a potential crime.

scrumhalf said:

I've signed many NDAs over the years, generally when working for clients who don't want the world to know about something in the planning stages.

There's nothing remotely untoward about them, but now the process has been somewhat tainted.

I don't have any problem with NDAs when it's not a criminal matter.