“Non-disclosure agreements (NDAs) are designed to protect confidential information and are often put in place in the course of settling a legal dispute. However, there are limitations to their scope; they do not cover information already in the public domain and cannot prevent employees or former employees from making whistleblowing disclosures (provided they are made in an appropriate way). Whistleblowing disclosures would cover malpractice, including any criminal offences or legal breach, but need to be reported to an appropriate person (such as the employer, a regulator or the police). Disclosures made on social media or to the press are therefore very unlikely to come under the umbrella of whistleblowing protection, and are likely to breach the terms of the NDA.

“When it comes to enforcing an NDA, there is a practical problem; once information has been disclosed there is often no going back. If it is anticipated that an NDA will be breached, the person trying to protect the information can apply for an interim injunction (interdict, in Scotland) ordering the gagged party not to disclose (which would then give rise to criminal sanctions if breached). In cases where the horse has already bolted, it becomes a question of damages. The aggrieved party may try to clawback any original sums paid under the NDA, as well as any further damages caused by the disclosure. However, it can be incredibly difficult to quantify this type of damage. Also, pursuing this in the courts can be very expensive and would likely draw further attention to the matter that was intended to be kept confidential.”