Advertising Coalition Calls on UK Industry to ‘Make NDAs Fair’ and Stop Silencing Sexual Abuse - NABS
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Advertising Coalition Calls on UK Industry to ‘Make NDAs Fair’ and Stop Silencing Sexual Abuse

A group of industry inclusion advocates, trade associations and action groups have launched a new ‘Make NDAs Fair’ campaign to raise awareness of the systematic misuse of NDAs in relation to sexual harassment cases. This group calls on agencies, brands and leaders across the industry to adopt Fair NDA Policies.

As well as our support the challenge is endorsed by partners including Outvertising, Bloom, the Conscious Advertising Network, Creative Equals and WACL, and a growing list of agencies, including QuietStorm, Seven Stars, The Elephant Room, Media Bounty and The Barber Shop. Fair NDAs will now be included as a recommended commitment in the Code of Conduct of the industry’s #timeTo initiative to eradicate sexual harassment.

Fair NDAs comes nine months after Zoe Scaman published ‘Mad Men, Furious Women,’ a blog post that shone a light on the countless stories of sexual and other harassment that women, many minorities, and indeed sometimes men, regrettably experience working within the advertising industry.

Most people’s experience of NDAs is perfectly reasonable and fair use to protect confidential business information and IP. Unfortunately, some in the media industry and other sectors have seen a darker side, in which they are used to silence victims of sexual abuse and prevent them from speaking about their experiences, even to their family.

The Make NDAs Fair campaign hopes to achieve two key goals going forwards into 2022.

  1. To educate around this misuse of NDAs so that more people within the industry are aware of it and in a position to challenge it. That includes better knowing your own rights, being able to support friends or colleagues in this situation, or for leaders to drive fundamental change in their organisations.
  2. To publicly call on marketing organisations to include a Fair NDA clause visibly within their internal policies. As part of making a Fair NDA commitment they should communicate this clause to all existing and future employees and sign post basic training resources.

A Fair NDA Policy should include the following:

  1. Absolute freedom to report workplace abuse and sexual harassment.
  2. Paying compensation to settle a workplace abuse and sexual harassment claim has nothing to do with silence.
  3. Protection of reputation should apply to the employer only. No blanket protection for individuals.
  4. Workers should be independently advised before accepting an NDA.

In July 2019 the UK government committed to legislate in this area “when Parliamentary time allows”. Unfortunately, with no changes in law on the immediate horizon, it is our ambition as an industry to move faster, eradicate sexual abuse of NDAs and confidentiality clauses and set an industry “best practice” standard. We believe this is one of, but not the only, key steps to take to reduce the sexual harassment and abuse that many of those in the marketing industry have regretfully experienced.

If you want to personally take a first step towards raising awareness and tackling this problem then please share some of the creative executions shown on this blog across your professional and personal social networks. Download the assets and social media pack here.

We encourage all those affected by this subject to explore the resources offered by timeTo and NABS, including confidential 1:1 support where required through the NABS Advice Line: 0800 707 6607/support@nabs.org.uk.

Below is the template fair NDA clause which you can use in your business.

Template Fair NDA Clauses

EG For suggested inclusion in ISBA Media Services Agreement 2021 or equivalent contract

22.3     The Agency warrants and undertakes on its own behalf (and on behalf of each Related Party) to at all times adhere to the Client’s Fair NDA Policy). The Fair NDA Policy includes the following commitments:

22.3.1       the Agency will not impose, permit or condone any obstruction to reporting of harassment, bullying or discrimination by Associates within the Agency or to external authorities;

22.3.2       any compensation payment by the Agency to Associates relating to workplace harassment, bullying or discrimination will be independent of any confidentiality, non-disparagement, or non-disclosure obligations imposed;

22.3.3       any contractual obligation imposed on Associates to protect the reputation and/or prevent disparagement of the Agency shall be limited to the Agency only. Where individuals are included this will be subject to the consent of the Associate(s) and limited to relevant individuals only; and

22.3.4       the Agency will ensure that free and independent legal advice is offered to any Associate before they are required to commit to a binding confidentiality obligation or non-disclosure agreement. The Associate will be permitted to appoint their own adviser and a copy of any resulting agreement will always be provided to them on request.

The Client’s FAIR NDA Policy can be found here: [insert link]

OR

22.4     The Agency warrants and undertakes on its own behalf (and on behalf of each Related Party) to at all times to adhere to the Client’s Fair NDA Policy. The Client’s FAIR NDA Policy can be found here: [insert link].

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