(Not-super) injunction, and names

Heartfeltdawn

digitalscream said:

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.

And we've seen time and time again how it is used by individuals and companies with wealth to cover over misdeeds. The Trafigura incident is an obvious comparison. 

https://www.theguardian.com/media/2009/oct/13/trafigura-drops-gag-guardian-oil

I'd warrant a lot more Ivory Coast residents had their life affected than wealthy folk have been wrongly accused. 

Wealth gives you legal advantages. 

Fretwired

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.

No it doesn't. Here's a real life example of how one was used.

A sales director and a salesman got into a fight at a company Christmas party. As it is a company run event the company is liable. It's hard to decide who is at fault but the company decides to get rid of the salesman as the sales director is more valuable to the company and on balance the salesman has a track record of drinking too much and getting into arguments with collegaues. The salesman could take the company to a tribunal  - however the company offers him a generous settlement by way of compensation and insists he signs a NDA. The point being he can't disclose the any material facts about what happened nor talk about the compensation he received, nor sue the company for unfair dismissal. This is not illegal.

NDAs are often used when an employee has a dispute with a company. It allows two parties to agree termination of employment with compensation and prevents a disgruntled employee from going to the press with their story or court demanding more money. From reports in the press this appears to be what happened. The accused is a bully who made people's lives a misery and made sexist comments. There's no suggestion he used his position to gain sexual favours hence his denial on this point with a threat to sue anyone who says otherwise. This isn't illegal and is common practice in business. I've been in companies where they've been used in this way.

And employees must seek independent legal advice (which is normally paid by the employer) before signing a NDA so they can't be bullied into it.

digitalscream

ICBM said:

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.

The number of cases is irrelevant. In one of the cases I was a juror for a couple of years back, there were three apparently unconnected women who separately accused the guy, and it turned out that the CPS had wilfully ignored evidence that they'd colluded to make it all up.

It was a significant feature of the prosecution's case that "three women, all with a similar tale to tell, must be telling the truth" even before #MeToo. Turns out it was demonstrably all a pack of lies, albeit with lots of emotional manipulation and tears on the stand. The guy's life was still wrecked, though - it took a year to get to court, during which time he was hounded out of his home town, lost his job, lost his family and basically became a hermit. I'm pretty sure that, had he had the opportunity and the resources, he'd have paid them all off to make it go away even though he was blatantly innocent.

So...for me, at least, the number of accusers really does make no difference.

ICBM

Fretwired said:

No it doesn't. Here's a real life example of how one was used.

A sales director and a salesman got into a fight at a company Christmas party. As it is a company run event the company is liable. It's hard to decide who is at fault but the company decides to get rid of the salesman as the sales director is more valuable to the company and on balance the salesman has a track record of drinking too much and getting into arguments with collegaues. The salesman could take the company to a tribunal  - however the company offers him a generous settlement by way of compensation and insists he signs a NDA. The point being he can't disclose the any material facts about what happened nor talk about the compensation he received, nor sue the company for unfair dismissal. This is not illegal.

In which case, if no criminality has occurred, it's not a problem. I'm not sure why you can't see the difference.

Fretwired said:

And employees must seek independent legal advice (which is normally paid by the employer) before signing a NDA so they can't be bullied into it.

You can't be serious.

digitalscream said:

The number of cases is irrelevant. In one of the cases I was a juror for a couple of years back, there were three apparently unconnected women who separately accused the guy, and it turned out that the CPS had wilfully ignored evidence that they'd colluded to make it all up.

It was a significant feature of the prosecution's case that "three women, all with a similar tale to tell, must be telling the truth" even before #MeToo. Turns out it was demonstrably all a pack of lies, albeit with lots of emotional manipulation and tears on the stand. The guy's life was still wrecked, though - it took a year to get to court, during which time he was hounded out of his home town, lost his job, lost his family and basically became a hermit. I'm pretty sure that, had he had the opportunity and the resources, he'd have paid them all off to make it go away even though he was blatantly innocent.

So...for me, at least, the number of accusers really does make no difference.

Surely it was better for the truth to come out, and for the accusers to then face prosecution for perverting the course of justice, and for the CPS to be found to have failed in its duty.

Because if the truth *doesn't* come out, then offenders can carry on offending, and cases like this will keep occurring.

digitalscream

ICBM said:

digitalscream said:

The number of cases is irrelevant. In one of the cases I was a juror for a couple of years back, there were three apparently unconnected women who separately accused the guy, and it turned out that the CPS had wilfully ignored evidence that they'd colluded to make it all up.

It was a significant feature of the prosecution's case that "three women, all with a similar tale to tell, must be telling the truth" even before #MeToo. Turns out it was demonstrably all a pack of lies, albeit with lots of emotional manipulation and tears on the stand. The guy's life was still wrecked, though - it took a year to get to court, during which time he was hounded out of his home town, lost his job, lost his family and basically became a hermit. I'm pretty sure that, had he had the opportunity and the resources, he'd have paid them all off to make it go away even though he was blatantly innocent.

So...for me, at least, the number of accusers really does make no difference.

Surely it was better for the truth to come out, and for the accusers to then face prosecution for perverting the course of justice, and for the CPS to be found to have failed in its duty.

Because if the truth *doesn't* come out, then offenders can carry on offending, and cases like this will keep occurring.

Better for whom? The guy's life was still wrecked, irrevocably. He couldn't get his job back, and he couldn't get his old life back - because people hold on to accusations in these cases, not court judgements.

Far better for the false accusations to have never been made. Which would be satisfied with a payoff and an NDA.

Reverend

Many years ago a friend told me about a very weird and disturbing thing that happened to her. Not long after, a similar story became very public knowledge. However,  due to the publicity, she was told that they would not be able to prosecute him for rape as it was deemed that that a fair trial had been compromised. 

Roland

ICBM said:

Fretwired said:

And employees must seek independent legal advice (which is normally paid by the employer) before signing a NDA so they can't be bullied into it.

You can't be serious.

Dead serious. It’s in the company’s interests to make sure that the employee understands the NDA, and can’t later come back and say they were mislead.

ICBM

Roland said:

Dead serious. It’s in the company’s interests to make sure that the employee understands the NDA, and can’t later come back and say they were mislead.

I meant he can't be serious about not being bullied into it, regardless of being given legal advice or understanding it.

digitalscream said:

Better for whom? The guy's life was still wrecked, irrevocably. He couldn't get his job back, and he couldn't get his old life back - because people hold on to accusations in these cases, not court judgements.

Far better for the false accusations to have never been made. Which would be satisfied with a payoff and an NDA.

So you're saying it's OK for people to blackmail others for money and get away with it, because they have no fear of being prosecuted for perverting the course of justice?

The only way to stop that sort of thing is for the consequences of being caught to be serious enough to act as a deterrent.

PolarityMan

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.

I thought in the UK criminal proceedings were brought by the CPS rather than an individual. Thus surely accepting an NDA should not prevent the case proceeding just by its existence (although obviously it would remove a witness and so make the proceedings untenable).

digitalscream

ICBM said:

digitalscream said:

Better for whom? The guy's life was still wrecked, irrevocably. He couldn't get his job back, and he couldn't get his old life back - because people hold on to accusations in these cases, not court judgements.

Far better for the false accusations to have never been made. Which would be satisfied with a payoff and an NDA.

So you're saying it's OK for people to blackmail others for money and get away with it, because they have no fear of being prosecuted for perverting the course of justice?

The only way to stop that sort of thing is for the consequences of being caught to be serious enough to act as a deterrent.

No, I'm obviously not. What I'm saying is that this is the real world where victims have to work within the system and their means, not some idealistic utopia where everything happens as it should.

At the point where an accusation is made, one of two people is a victim and the consequences of that are permanent for that victim. However, only one of those possibilities involves a crime that's punishable by the courts - if the accusations are true, and the verdict is "guilty".

However, the system we have provides zero consequences for the accuser if the accusations are false, and the accused still gets to lose everything. In this case, it's quite literally a risk-free way to screw over someone you hate.

So...put yourself in the innocent accused's shoes, and imagine that you've got bags of money. Two choices:

1 - Roll the dice on them putting a convincing story forward and getting you sent to jail, or if they're not convincing you still lose your reputation, and likely your job, your friends, your family and pretty much everything you've put together over your lifetime.

2 - Offer them some money in the hope they'll go away. If they say "no", you'll still end up at #1 anyway, so your situation's no worse than it was before the choice.

I know what I'd do.

ICBM

digitalscream said:

No, I'm obviously not. What I'm saying is that this is the real world where victims have to work within the system and their means, not some idealistic utopia where everything happens as it should.

At the point where an accusation is made, one of two people is a victim and the consequences of that are permanent for that victim. However, only one of those possibilities involves a crime that's punishable by the courts - if the accusations are true, and the verdict is "guilty".

However, the system we have provides zero consequences for the accuser if the accusations are false, and the accused still gets to lose everything. In this case, it's quite literally a risk-free way to screw over someone you hate.

So...put yourself in the innocent accused's shoes, and imagine that you've got bags of money. Two choices:

1 - Roll the dice on them putting a convincing story forward and getting you sent to jail, or if they're not convincing you still lose your reputation, and likely your job, your friends, your family and pretty much everything you've put together over your lifetime.

2 - Offer them some money in the hope they'll go away. If they say "no", you'll still end up at #1 anyway, so your situation's no worse than it was before the choice.

I know what I'd do.

Even if if you know you're completely innocent?

Because if you offer the money you're actually in danger of later being thought guilty if it comes out, by the very fact that you paid it to keep them quiet. The law only works properly when that sort of thing can't happen, and that means that an accusation *can't* be allowed to be bought off. It also means that false accusations must be seriously punished, and I accept that isn't usually the case - but it can be under the existing law, and should be.

The only effective way to stop that sort of blackmail is to make sure that any accusation *must* go to law, so the accuser knows it too.

I absolutely don't think that NDAs should be an acceptable part of the criminal law system, for either party.

digitalscream

ICBM said:

digitalscream said:

No, I'm obviously not. What I'm saying is that this is the real world where victims have to work within the system and their means, not some idealistic utopia where everything happens as it should.

At the point where an accusation is made, one of two people is a victim and the consequences of that are permanent for that victim. However, only one of those possibilities involves a crime that's punishable by the courts - if the accusations are true, and the verdict is "guilty".

However, the system we have provides zero consequences for the accuser if the accusations are false, and the accused still gets to lose everything. In this case, it's quite literally a risk-free way to screw over someone you hate.

So...put yourself in the innocent accused's shoes, and imagine that you've got bags of money. Two choices:

1 - Roll the dice on them putting a convincing story forward and getting you sent to jail, or if they're not convincing you still lose your reputation, and likely your job, your friends, your family and pretty much everything you've put together over your lifetime.

2 - Offer them some money in the hope they'll go away. If they say "no", you'll still end up at #1 anyway, so your situation's no worse than it was before the choice.

I know what I'd do.

Even if if you know you're completely innocent?

Because if you offer the money you're actually in danger of later being thought guilty if it comes out, by the very fact that you paid it to keep them quiet. The law only works properly when that sort of thing can't happen, and that means that an accusation *can't* be allowed to be bought off. It also means that false accusations must be seriously punished, and I accept that isn't usually the case - but it can be under the existing law, and should be.

The only effective way to stop that sort of blackmail is to make sure that any accusation *must* go to law, so the accuser knows it too.

I absolutely don't think that NDAs should be an acceptable part of the criminal law system, for either party.

Yes, on the assumption of innocence.

With option 2, there's a good chance that it'll never come out and thus the falsely-accused gets to keep their life. With #1, there's precisely zero chance of keeping that life.

HAL9000

Going off at a slight tangent here but a genuine question...

If an NDA is an agreement between two parties, and the Telegraph through its own investigations somehow discovers the (alleged) misdeed...

Then presumably the Telegraph, not being a signatory to the NDA, is allowed to publish? Also, if the agreement is a super-injunction then the Telegraph wouldn't even know of its existence and would still feel able to publish...

sev112

 if anyone has the opportunity to read the law and the case law on what constitutes harassment and in particular sexual harassment - It is not simple.  If you then try looking at the case law for bullying it is even less clear.

so one staff member’s bullying / harassment is another colleague’s believed acceptable behaviour, when interpretations come into play.

aggrieved staff member raises grievance with employer over claimed bullying / harassment.  Employer starts grievance process, engages independent director from the business to investigate,  take witness statements, collect “facts” (which are almost always not facts and in fact opinions on hearsay, whichever “side” they are from) and then compiles report.  That takes time, lots of stress for the people involved and loads of money .  Company decides whether there is introvertible evidence of bullying or harassment, and decides there is insufficient facts to determine that bullying / harassment occur.  Company then reports this back to the complainant.  All this takes lots of more time, and the complainant is highly stressed throughout and the accused is highly stressed throughout.  None of this is good for the individuals not the business.

Complainant then thinks this isn’t what they hoped so appeal, and the whole thing starts again, and comes up with same conclusion.  

How long do they go on and on , in an organisation which is not the courts and don’t have the resources nor sufficient facts to judge who is right and wrong.  No one is going to win in these circumstances . The people stuck in the middle of it are going through hell or similar.

so companies and parties try and work out an agreeable solution.  We can’t punish what we can’t prove but what can we do which will make your working life and evironment agreeable for you?   So, How about we arrange that you don’t work with that person again, why don’t we find a different role, departments , office, etc etc.  And that takes time and money and stress for all parties.  But even then you can’t always get mutual agreement.  At that point some kind of legal agreement m compensation and NDAs come into the picture.  Because lives and companies have to go on and not keep haemorrhaging money and stress for everyone.

That’s why NDAs are often used in a valid and reasonable way.  They may even have been associated with a case related to potential  “sexual harassment”, but they are not themselves a bad thing, nor are their existence necessarily evidence of a big rich employer preying on poor people.

Fretwired

ICBM said:

Fretwired said:

And employees must seek independent legal advice (which is normally paid by the employer) before signing a NDA so they can't be bullied into it.

You can't be serious.

Yes. I've been through this as an employer. And when your negotiating a Settlement Agreement with an employee the employer pays the employee's legal bill. The employee has to have professional independent advice or the agreement is invalid. An independent lawyer would ensure the employee is not bullied. The employee can always go straight to a court. A good lawyer will ensure a decent payoff.

TTony

HAL9000 said:

Going off at a slight tangent here but a genuine question...

If an NDA is an agreement between two parties, and the Telegraph through its own investigations somehow discovers the (alleged) misdeed...

Then presumably the Telegraph, not being a signatory to the NDA, is allowed to publish? 

I believe not.

If and as soon as any other party becomes aware of an NDA, they are automatically bound by the same terms of non-disclosure.

HAL9000 said:

 Also, if the agreement is a super-injunction then the Telegraph wouldn't even know of its existence and would still feel able to publish...

NDAs and (Super)Injunctions are different things.  The first is a legally binding contractual agreement between two  parties.    Injunctions are granted by courts to stop  all sorts of things happening.  

Garthy

ICBM said:

Roland said:

Dead serious. It’s in the company’s interests to make sure that the employee understands the NDA, and can’t later come back and say they were mislead.

I meant he can't be serious about not being bullied into it, regardless of being given legal advice or understanding it.

digitalscream said:

Better for whom? The guy's life was still wrecked, irrevocably. He couldn't get his job back, and he couldn't get his old life back - because people hold on to accusations in these cases, not court judgements.

Far better for the false accusations to have never been made. Which would be satisfied with a payoff and an NDA.

So you're saying it's OK for people to blackmail others for money and get away with it, because they have no fear of being prosecuted for perverting the course of justice?

The only way to stop that sort of thing is for the consequences of being caught to be serious enough to act as a deterrent.

No he isn’t saying that at all, just read what he’s written as it’s pretty clear.

bingefeller

Ya know what, why would anyone want to risk their forum membership for naming this person? It's really not worth it 

scrumhalf

TTony said:

If and as soon as any other party becomes aware of an NDA, they are automatically bound by the same terms of non-disclosure.

I don't think that's right. If it was, then an NDA (which is an agreement between one or more parties) would have the effect of an Act of Parliament, which binds everyone.

mellowsun

bingefeller said:

Ya know what, why would anyone want to risk their forum membership for naming this person? It's really not worth it 

Moreover, why is this subject even being discussed here as if people are somehow party to the facts because they read about it on the Internet? There seems a common theme here that because there may have been an NDA and an accusation of something there must be guilt. I hate this shit.