ink-stained wretches

When Does a Nondisclosure Agreement Cross the Line?

Do the people running OK! have something to hide? Earlier this week, the second-tier celebrity gossip magazine laid off a half-dozen employees, including editor-in-chief Katie Caperton. Each terminated staffer was required to sign a document containing a confidentiality agreement in order to obtain his or her not-particularly-generous allotment of severance pay.

Nondisclosure agreements for fired workers are hardly unusual, even in the media industry — where you’d think there’d be a little more regard for the principle of free speech, right? But the NDA OK! has been using is as far-reaching as any we’ve seen. Read it for yourself:

[Y]ou expressly agree that you shall not write, publish, cause to be published, or authorize, consult about or with, or otherwise be involved in the writing, publication, broadcast, transmission or dissemination of any diary, memoir, letter, story, photograph, film, videotape, interview, article, essay, biography, book, documentary, or other written, oral, digital or visual account or description or depiction of any kind fictionalized or not about the company or its employees, officers or directors, whether truthful, defamatory, disparaging, deprecating, or neutral.

Get all that? If you don’t want to get stiffed out of your last paycheck, you can’t ever discuss anything work-related in a private e-mail or scribble about it in your diary, much less tweet about it or pen a roman à clef. That’s a considerable and inconvenient restriction to place on people who are, after all, writers. “A lot of people were thinking, ‘Maybe I could write something about getting laid off to cover the rent this month,’” says one OK! refugee. Nevertheless, this ex-staffer signed the paper: “I’d never been laid off before, so I assumed it was kind of standard.” (Representatives at OK! declined to comment.)

Well, it’s not — and it may not hold up in court, according to lawyers who specialize in contract and publishing law. “In contract law, from the get-go, there’s always a rule that contracts that are against public policy are not enforceable,” says Alan E. Garfield, a professor at Widener Law School. “One of the things they’re trying to restrain here is the dissemination of even truthful information. The very fact that it doesn’t sound like it would be actionable in defamation suggests there’s an underlying interest in public policy” in having such information published, he says. (In other words, you can sign away your right to trash-talk, but not to be a whistleblower.)

Another argument is that an employee who agrees to a gag order just to get paid isn’t really free to choose, but is in effect being coerced — making it a so-called contract of adhesion, says trial lawyer Lincoln Bandlow of Spillane Shaeffer Aronoff Bandlow LLP. “There’s going to be an issue of whether there’s proper consideration for it,” he says. “The argument would be they’re already entitled to their severance for other reasons.”

Here’s another thought: Who cares? OK!, after all, isn’t Vogue; any tell-all written by someone who worked there is very, very unlikely to be the next The Devil Wears Prada. Witness what happened after Stephanie Green, who had worked for the legendarily demanding Bonnie Fuller at Star magazine, wrote a thinly fictionalized novel about the experience despite having signed a confidentiality agreement. Fuller’s employer, American Media, went to court to stop her. Green won, but only to end up self-releasing the book after failing to find a publisher.

When Does a Nondisclosure Agreement Cross the Line?