THE BLOG
25/10/2018 18:22 BST | Updated 26/10/2018 11:00 BST

NDAs Are As Worthless As The Paper They're Written On - It's Time We Stopped The Rich And Powerful From Manipulating The Courts

A legalised veil of secrecy serves as nothing more than a free pass for those who engage in sexual harassment in the workplace

PA Wire/PA Images

This week, we saw a rich, successful and powerful man use his position and the resources available at his disposal to silence allegations of sexual harassment, racial discrimination and bullying.

On Tuesday evening, rumours began to swirl that The Telegraph were about to make an announcement - the outcome of an appeal that lawyers had lodged following a successful bid by a well known businessman to stop the publication of his name following allegations of sexual harassment, bullying and racial slurs.

However, just two days later, the businessman in question has been named as Sir Philip Green, the owner of Topshop and many of the high street brands favoured by young, impressionable women and girls.

Sir Philip’s name was revealed in Parliament by Lord Peter Hain. Parliament is the only place in which a member of Parliament or a Peer can use their protected privilege to name people without being sued for libel or in breach of court orders. As a campaigner for women’s rights and freedom of speech, I applaud Lord Hain for using his position as a Peer for the greater good.

But the question that lingers is whether Sir Philip should have been able to block the press from publishing information that was so obviously in the public interest. And shouldn’t non-disclosure agreements now be made redundant in this social media age?

The use of unregulated social media platforms means it is virtually impossible to enforce court orders banning the naming of individuals or companies that are seeking to hide allegations against them. In addition, by using courts to try and silence his alleged victims and the press, Sir Philip has achieved the complete opposite.

It is obvious judging from the case involving not only Sir Philip, but many other successful, rich and powerful people, that the courts in the UK are only accessible by those who have money, power and status.

NDAs are routinely used to silence victims of bullying, sexual harassment and even sexual assault and many employment contracts will include a blanket ban on discussing anything that happens during the length of the job.

This effectively acts as a gagging order, preventing victims from seeking help or telling others about their experiences.

NDAs have been weaponised by the rich and powerful as a tool to silence their victims. The threat of costly legal action further undermines our justice system and equal access to the law.

A legalised veil of secrecy serves as nothing more than a free pass for those who engage in sexual harassment in the workplace. While NDAs are null and void if they are used to cover up any criminal offence, they are still enforceable where the victim has suffered sexual harassment at work. This is manifestly unfair.

Joe or Jane Bloggs does not have the capacity to pay for or defend expensive litigation, which makes it even more a rich person’s playground.

The law should not discriminate nor favour anyone - sadly that is not the case. The law has been and will always be used by those who have access to money, status and power.

Freedom of speech and expression is a fundamental right under democratic law. By using the legal system to prevent exposing what is no doubt a matter of grave importance for the public, Sir Philip was effectively silencing the British press.  

I hope that in the very near future NDAs become as worthless as the paper they are written on. Until then, the legal system will continue to operate on a disparate track, one for the super rich and the second for their victims.  

Aisha Ali-Khan is a freedom of speech campaigner with a specialist interest in non-disclosure agreements. She is the co-organiser of the Women’s March London.