What Is A Gagging Order?

emily gordon brown
Emily Gordon BrownLegal Assessment Specialist @ Lawhive
Updated on 8th July 2024
what-is-a-gagging-order

Gagging orders, or as they're formally known, confidentiality agreements, are pretty common in the workplace.

However, they're not without controversy, especially when it comes to how they're used by employers to potentially silence employees.

In this article, we pull back the curtain of these frequently used legal tools, focusing particularly on their darker side and what it means for workers.

What is a gagging order?

A gagging order, also known as a confidentiality agreement or non-disclosure agreement, is a legal contract used to keep certain information confidential.

It typically prevents parties from discussing or revealing specific details about a matter, often related to employment, legal disputes, or business transactions.

Is a gagging order the same as an injunction?

A gagging order is a contractual arrangement where one or more parties agree to keep specific information confidential while an injunction is a court order that either compels a party to do something or stops them from doing something.

Why are gagging orders used?

Gagging orders are often used:

  • By businesses to protect trade secrets, proprietary information, and intellectual property;

  • To keep the terms of legal settlements confidential;

  • In employment agreements to make sure employees don't disclose confidential information during or after their employment;

  • To protect personal information and prevent the disclosure of private matters (usually in high-profile cases where there is a significant public interest);

  • To stop the media from reporting on certain aspects of a case.

Why are gagging orders controversial?

While gagging orders can be useful for protecting legitimate business interests and personal privacy, their potential to silence victims and suppress important information makes them highly controversial.

Recently, there have been calls for stricter regulations to ensure that these agreements are not used to silence victims of abuse or misconduct.

Suppression of information

One of the main criticisms of gagging orders is that they can be used to suppress important information that is in the public interest. For example, these clauses might prevent victims of workplace harassment, discrimination, or abuse from speaking out about their experiences. This suppression can protect wrongdoers and prevent accountability.

Injustice to victims

In cases of harassment or discrimination, gagging orders can silence victims, leaving them without a voice or the ability to share their experiences publicly. This can lead to a sense of injustice and perpetuate harmful environments, as others remain unaware of the issues.

Lack of transparency

Gagging orders can undermine transparency, especially in high-profile cases involving public figures or large corporations. By preventing the disclosure of details, they can obscure the truth and make it difficult for the public to understand the full scope of an issue.

Ethical concerns

There are ethical concerns about the use of gagging orders to cover up misconduct. For instance, if a company uses an NDA to prevent former employees from discussing illegal or unethical activities, it raises questions about the moral responsibility of that company.

Example of gagging orders

Harvey Weinstein

A former assistant to Harvey Weinstein signed a non-disclosure agreement in 1998 which prevented her from speaking to anyone about the alleged sexual assault of a colleague.

Sir Philip Green

Retail tycoon Sir Philip Green was involved in a high-profile case where gagging orders were used. Employees of his company, Arcadia Groupe, alleged sexual harassment and racial abuse; NDAs were reportedly used to silence the accusers as part of their settlements.

Expenses scandal

Gagging orders were also used during the MP's expenses scandal when some MPs attempted to use NDAs to prevent the publication of details regarding their expense claims, which included inappropriate and extravagant spending of public money.

How long do gagging orders last?

Many gagging orders are designed to last indefinitely. This means the obligation to keep the information confidential continues permanently, without an end date. This is certainly common in corporate settlements where NDAs last indefinitely to make sure the details of the settlement remain permanently confidential.

In certain cases, however, a gagging order might specify a fixed term or the duration might be linked to specific events or conditions.

From a legal perspective, the enforceability of an indefinite gagging order can sometimes be challenged if it is deemed unreasonable or overly restrictive. As such, a court may review and potentially change the terms of a gagging order.

What happens if a break a gagging order?

If you break a gagging order, the party who imposed it can sue for breach of contract and you might be liable to pay damages.

In the context of employment settlements, if a gagging order is part of an employment settlement or contract, breaking it could lead to loss of settlement benefits.

As such, it's always wise to seek legal advice if you are unsure about the contents and implications of a gagging order. Fully understanding your rights and obligations can help you avoid unintentionally breaking the agreement.

Or, if you believe a gagging order is too restrictive, it's often possible to negotiate the terms to something more mutually agreeable.

Conclusion

While gagging orders are designed to protect sensitive information, their use in the workplace can sometimes cross into murky waters.

They can be used to prevent employees from speaking out about unfair practices, discrimination, or even harassment. This lack of transparency can keep serious issues hidden, protecting those in the wrong rather than the victims.

Understanding what gagging orders are, why they're used, and what they mean is vital, especially if you find yourself being asked to sign one. If you're ever in doubt or feel like your rights as an employee are being compromised, it's wise to get legal advice.

Contact us today for a free case evaluation and discover how our network of expert employment lawyers can work with you to make sure your workplace rights are fully protected.

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