The devil in the detail

Earlier this year I had a run-in with a press vendor over a non-disclosure agreement, or NDA. It’s a fairly common business practice for companies to ask people to sign such agreements before sharing confidential information.

An NDA is a legally binding document, drawn up by lawyers, usually with several pages of small print. Some companies use a general purpose agreement but often an NDA is drawn up for a particular purpose complete with details of what information can and can’t be shared and who with.

The situation with journalists is somewhat different since our business is all about reporting on what we’ve learned. Most companies are smart enough not to tell journalists things that should be kept private but sometimes companies will tell us information ahead of an upcoming announcement and ask for publication to be delayed so that, for example, a product can be announced simultaneously worldwide. This usually involved some sort of an embargo, which should include the date and time that publication of the information is allowed –it always surprises me how many companies think the expiry date is a minor detail even though it’s the whole point of the exercise!

These embargoes can take many forms – sometimes verbal, sometimes a deadline written in bold at the top of a press release. Sometimes the embargo might consist of a couple of lines on a separate sheet and on occasion journalists might be asked to sign those sheets. They’re usually drawn up by PR departments and aren’t meant to be legally-binding. But that’s not important because most journalists don’t give a damn about someone else’s legal statements. Having a long-term relationship with the vendor is far more important to us, which is enough to ensure that most journalists will respect an embargo.

So my recent disagreement was over a visit to a European vendor that had its legal team draw up a completely open-ended NDA, when all that was needed was a simple embargo, and then tried to force this upon me at the last minute. I doubt the NDA would have stood up in court because it did not clearly state all the terms and I know that other journalists signed it on that basis. But I don’t like to sign forms that have no meaning, just as I try to ensure that every story I write is as accurate as possible. When I pointed out the problems with the NDA I was told to sign it anyway.

I chose to pass on that particular opportunity because there’s no value to me in having a relationship with a vendor that’s built entirely on legal agreements, especially if those legal agreements aren’t worth the paper they’re written on. There has to be an element of trust in relationships between journalists and those that we write about, especially in a business context and most journalists work hard to establish that trust. But it goes both ways: we have to give readers useful information but also convince companies that we won’t spill commercially-sensitive secrets or abuse their trust; yet we also have to trust that sources will give us accurate information. So trust is important and embargoes are a reasonable part of that but having the legal team draw up an NDA for a press briefing just says that the PR department isn’t on the ball.

All of this reminds me of a trip some years ago to see a direct mail printer with a number of other journalists in the UK. Once we’d exchanged pleasantries, the managing director passed around standard visitor NDA forms, which all my colleagues duly signed. Now, there’s a lot of sense for companies to ask people visiting their premises to sign an undertaking not to talk about what they have seen. Let’s face it, nobody wants to invite a potential customer to walk around their factory only for that customer to then go and describe everything they’ve seen to a competitor.

But I pointed out that I couldn’t sign a general purpose agreement not to disclose anything from the trip, since that was exactly what I was planning to do, and the reason why the company had invited us all there in the first place. Needless to say, the other journalists all looked a bit sick when they realised they had signed this document without thinking of the implications.

But thinking of the implications is part of the job description of being a journalist. It’s our job to tease out the meanings in events and announcements, to point out to readers when a vendor’s claims might not stack up, where there might be problems with a particular technology or if there’s a cheaper or better option. This is, after all, why people choose to read what we write. So sometimes the small print is important, and not just because it shows up dot gain, poor drop placement, low resolution or all the other things that printers and journalists look for.

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