Why NDA’s are bad for democracy
You are a medieval ferryman. One day a drunken farmer returning from market with the cow he’s just bought pays you a penny to take them both across the river. Halfway over the cow panics, jumps off the ferry, and drowns. Not your problem, you think. The farmer shouldn’t drink so much and he should take better care of his beasts. However, the farmer goes to a clever lawyer and you find yourself being sued, not for negligence (tort), but for failing to fulfill a bargain you made to carry his cow across the river (contract). Out of situations like this began a long-running battle in the common law between tort (private wrong) on one side and contract on the other. Generally speaking, in periods when tort was in the ascendant private citizens benefited, whereas in periods that favoured contract the rich and powerful got their own way.
In the 1970s a legal development in American academic circles called the Law and Economics movement signalled our current shift towards the predominance of contract. Consider this equivalent of our medieval ferryman. A large firm builds a factory whose emissions are likely to contaminate the surrounding farmland. It could wait to see if a local farmer will sue it (tort), but this is likely to be expensive, particularly if the farmer gets a number of her neighbours to join her in a class action. Far better (and cheaper) to offer her a sum of money in exchange for her commitment never to sue it in the future (contract). This might be fine if both parties enjoyed equal bargaining power, but that is clearly not the case. The law would step in if the firm threatened to break the farmer’s legs if she didn’t sign (duress), but if it merely brings vastly overwhelming legal muscle to the table the law will happily sit on its hands.
This is the legal background to our current fashion for Non Disclosure Agreements. NDA’s became notorious when it was revealed that Donald Trump had signed one with Stormy Daniels, but however distasteful such a contract might appear, it was made between two private citizens. Things are quite different when an NDA is signed between a corporation and an elected body. Politicians are elected to speak not only for, but to, their constituents. Any private agreement that limits their freedom of speech clearly runs counter to the public interest. To my knowledge such NDAs have not been tested in a Canadian court, but were a politician to renege on one it would be interesting to see what might happen. After all, it is a fundamental principle of the common law that contracts that are made against the public interest are void (that is why a so-called “contract killing” is not a contract at all). At all events, our councillors would be wise to think very carefully before signing such impolitic NDAs in the future.
Richard Firth Green