A non-disclosure agreement (NDA) or confidentiality agreement is standard and reasonable business practice. These are not sinister requests. They’re just setting up the detailed expectation of how you will treat their information. But not all agreements are created equal.
Why to Sign an NDA
Writers and businesses want members of their team to sign an NDA to protect their intellectual property. While one might say “no one but their mother is interested in this information,” they’re doing what they think is necessary to protect their interests. It impresses upon all parties just how serious their “don’t talk about this” request is.
Publishers often ask for an NDA so information about their “revolutionary book” won’t leak; maybe it’s a controversial topic or writer they’re saving for a big reveal. Businesses ask for one so the competition can’t find out about their “revolutionary product.” Perhaps it’s a trade secret; meaningless to you but sought by the competition.
How to Honor an NDA
To be fully safe, treat their information like a matter of global security. Don’t mention it. Period. Spouses get nothing. Kids get nothing. Your accountant gets nothing. The dog never hears a thing. Continue…
Only people who you have been given permission to discuss the project with (in writing) hear a thing. That includes their own company employees.
When you need to check a style point with a colleague, the content had better be disguised beyond any possible recognition. There will be no outsourcing or subcontracting without written permission, and they’ll sign an NDA too.
Protect their files. Look into data security in your office, while travelling, and anywhere else you may be. Look into physical security for your location and for file storage while outside the office.
Parts to Negotiate in an NDA
While an NDA can be very simple, sometimes they pose a risk to the editor signing it. A court might decide that the terms of an NDA were unreasonable, but even that could cost an expensive legal defense. To protect yourself, these are possible aspects of an NDA that you should review with your lawyer.
Proof: Does it make you liable for even the appearance of an information leak? Do accusations trigger the terms or must it be a proven-in-court violation?
Jurisdiction: If this is subject to the laws somewhere other than where you are, do you understand their laws enough to be confident in your rights and in the consequences?
Liability extent: Does it make you responsible for all costs (legal, lost income) if the information leaks, even if it’s not proven to have come from you?
Duration: Is there an expiry date? Can you talk about even being part of the process once the item is public?
Security: Does it prohibit use of cloud storage or transfer services? Does it require you to use encryption, security systems, or otherwise ensure the privacy of their information while it is in your possession?
Scope: Can you even list them as a client? Can you say “I’m working on a manual for XYZ Inc.” but not say what the manual is for? Can you get your computer fixed while it contains their files? What if you learn about illegal activity; does this gag you?
Know what kind of legal responsibility you are prepared to accept, and what the consequences are if you break the agreement (even by mistake). Be prepared to walk away if you can’t come to an agreement that your lawyer assures protects you as much as it protects them.