UK Harassment Legislation Could Help End Use of NDAs in Advertising

The U.K. government’s new strategy to tackle violence against women and girls could have significant implications for the advertising industry. As part of the strategy, the government has proposed limiting the use of nondisclosure agreements (NDAs) in sexual harassment cases within higher education settings. This could raise questions about their use in other sectors, such as advertising, where there has also been a renewed call to ban NDAs in harassment cases. A nondisclosure agreement is a confidentiality clause within an employment contract or settlement agreement that prevents current or former employees from disclosing certain information. They can be used to protect trade secrets, but during the #MeToo movement, it emerged that some corporate bosses, such as Hollywood producer Harvey Weinstein and former chairman of retail company the Arcadia Group Philip Green, had used NDAs to stop former employees from speaking out about sexual harassment and bullying in the workplace. In the ad industry, campaigners are urging businesses to abolish NDAs in cases of sexual harassment and assault, arguing they can have a damaging effect within agencies and allow perpetrators to go unnamed and unpunished. This UK Ad Partnership Hopes to Help Criminalize Sexual Harassment in Public Sexual harassment and abuse in advertising is in the spotlight again after Zoe Scaman’s recent piece, “Mad Men. Furious Women,” which detailed the discrimination that she and other women have faced while working in the industry. Her essay prompted a declaration from a group of marketing women aimed at putting harassers throughout the industry on notice. TimeTo, a cross-industry group to end sexual harassment in advertising and marketing created by U.K. organization NABS, Women in Advertising and Communication Leadership (WACL), and The Advertising Association, told Adweek it “strongly advocates against the use of NDAs in sexual harassment cases.” “A misuse of NDAs in relation to sexual harassment can create a culture in which systemic issues remain unaddressed,” said Diana Tickell, CEO of Nabs and TimeTo steering committee member. “Sexual harassment is normalized, and those who have been sexually harassed may feel unable to speak out or may end up being wrongfully silenced. The power imbalances that are often a product of harassment are also reinforced.” Bloom, the professional network for women in communications, also condemned the use of NDAs to silence victims of harassment and abuse. “Using NDAs as a form of control when people have bravely come forward about bullying and harassment when the perpetrators face no consequences is a dark underbelly of our industry we need to wipe out,” a spokesperson said. “We are seeing many women coerced into signing these documents when they are in highly vulnerable and emotional states. It plays into the narrative that if you are of a certain status you can behave how you want and face no consequences—surely this is not how we want our industry to be?” 'We need to lobby as an industry' Speaking this month on the Adweek podcast, Yeah, That’s Probably an Ad, Scaman said there were numerous examples of NDAs being misused by agencies and allowing abuse to go unchecked, such as an agency that had multiple NDAs against one man over the course of a decade. “NDAs are used as a pernicious way to silence people who have been hurt and they are used as ways to basically get rid of any level of scandal so the agency can continue on," she explained. "What they do is they damage people’s careers and their prospects, they shut down their trauma so they have no choice but to basically keep it to themselves. … And they let predators continue. “We need to lobby as an industry that we will agree that we will no longer silence people’s trauma with a nondisclosure agreement.” The U.K. government’s new proposal only addresses the use of NDAs in higher education, which is having its own #MeToo moment after the website Everyone’s Invited highlighted allegations of a rape culture within education settings. In 2019, the U.K. government conducted a wider consultation on the misuse of confidentiality clauses in workplace discrimination and harassment cases. As a result of the consultation, it said it would introduce legislation to prevent NDAs from being used to stop people from disclosing information to the police, healthcare or legal professionals. But that legislation has not yet been presented to Parliament. The government’s strategy to tackle violence against women, announced on Wednesday, also includes a multimillion-dollar communications campaign targeting perpetrators and harmful misogynistic attitudes; a new national policing role responsible for curbing violence against women and girls; a 24-hour rape and sexual assault helpline; a £5 million ($6.8 million) “safety of women at night” fund; and an online tool for women and girls to pinpoint areas where they have felt unsafe. The strategy comes amid renewed concerns in the U.K. over women’s safety, following the high-profile case of Sarah Everard, who was kidnapped and murdered while walking home from a friend’s house in South London in March. The movement to better protect women is now being echoed within advertising. In a 2018 survey, TimeTo found that 41% of respondents had experienced and/or witnessed sexual harassment at work, but 83% had not reported it. Scaman said on the Adweek podcast: “It’s not getting any better. … We are as an industry exceptionally good at overcommunicating and copywriting pledges and codes of conduct and taglines. … It’s bullshit. Nothing happened after #MeToo.” She added that the dissonance between industry leaders’ words and actions was what had provoked anger from women and why her piece had resonated. The end of NDAs is just one of the actions she is calling on the industry to take, along with the creation of a central body where harassment could be externally and independently reported and investigated. 'No More': This Declaration, Written by Women in Advertising, Puts All Harassers on Notice