Salt in the wound: When the powerful use gag clauses to silence victims

Salt in the wound: When the powerful use gag clauses to silence their victims

Given the unprecedented global conversation sparked by #MeToo it is tempting to believe we are well on our way to stamping out sexual harassment in workplaces. We are not.

The British newspaper, The Daily Telegraph, on Tuesday makes this very clear with its front page report that a leading businessman has been granted an injunction to keep his identity from being revealed.

The toxic truth of it is that the very same power imbalance serial harassers have abused in the first place is the very same vehicle they rely upon to punish their victims after the fact. Power – coupled with money – has enabled some perpetrators to offend with impunity.

Harvey Weinstein is an abysmal case in point: not satisfied with merely abusing scores of younger females in his midst he terrorised them afterwards with threatening legal tactics to keep them silent. For decades it worked.

It’s fanciful to imagine Weinstein was the only powerful man in the world who relied upon non-disclosure agreements to keep his vile predilection hidden from public view.

We now know that at least one high profile British businessman has adopted a similar strategy using NDA’s at least five times as his “weapon of choice” to keep victims quiet and his reputation untarnished.

The Telegraph was planning on exposing this man for alleged sexual harassment and racial abuse of staff, in a story the newspaper editors said would put the spotlight on the mistreatment of women, minorities and others by powerful employers, but an injunction from the Court of Appeal has come to his protection.

He has created a legal fortress around himself courtesy of having the means to build it: mere mortals could only dream of being able to cover the legal fees associated with deploying and enforcing multiple NDAs, let alone seeking an injunction in the nation’s highest court.

Non-disclosures agreements – or gag clauses as they are known – were originally designed to protect businesses and ensure employees didn’t share trade secrets upon moving between enterprises.

That is light years away from a powerful individual using these contracts and clauses to silence people they have abused or harassed or worse.

There are concerns – which seem legitimate from these reports and Harvey Weinstein’s experience – that these clauses are “being abused to cover up wrongdoing and deter victims of potential crimes from going to police”.

A former Weinstein aide who broke a non-disclosure agreement from the late 1990s to allege sexual harassment, Zelda Perkins, told the Telegraph it was “ridiculous”.

“NDAs have become weaponised. They were originally very useful things to protect commercial property and company secrets which, of course, is fair enough. But, in terms of them being used for anything else, there has to be legislation to stop that.

“There is no place for NDAs at all around any of these types of misdemeanours, If that protection is available then it perpetuates that sort of behaviour,” she said, adding that fewer people “would be putting their hands up someone’s skirt if they knew that they didn’t have a get out”.

It’s true.

In this case the British High Court had previously determined there was sufficient public interest in this man’s identity being revealed but on appeal he was granted a temporary injunction. A full hearing will take place in 2019.

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