NDA Enforcement vs Journalism: When Non-Disclosure Agreements Meet the Public Interest

What NDAs are and why they matter to journalists

A non-disclosure agreement is a contract — typically between an employer and a current or former employee, or between parties to a civil settlement — under which one or more parties agrees not to disclose specified information. In employment contexts, NDAs commonly accompany settlement agreements under which an employee accepts financial compensation in exchange for not bringing or continuing an employment tribunal claim and not discussing the circumstances of their departure.

For journalists, NDAs matter because the subjects of the most newsworthy stories — workplace misconduct, harassment, financial fraud, cover-ups of unsafe practices — are frequently the very subjects about which employees have been required to sign NDAs. A source who approaches a journalist about serious wrongdoing may be contractually prohibited from speaking, face financial penalties for breach, and may be frightened of litigation. Understanding the legal limits of NDAs helps journalists assess the risk to their source and to their own publication.

The critical point is that NDAs are contracts, not court orders. They bind the contracting parties but do not of themselves prevent a third-party journalist from publishing information that comes to them by lawful means. The NDA may expose the source to breach of contract liability; it does not automatically expose the journalist to liability for receiving and publishing the information.

PIDA 1998: the statutory whistleblower carve-out

The Public Interest Disclosure Act 1998 (PIDA), now largely incorporated into Part IVA of the Employment Rights Act 1996, provides that a worker cannot be subjected to a detriment, and cannot be unfairly dismissed, for making a “protected disclosure”. Critically, any provision in an agreement — including an NDA or settlement agreement — that purports to preclude a worker from making a protected disclosure is void under s.43J ERA 1996.

A disclosure is protected if it is a qualifying disclosure (a disclosure of information that the worker reasonably believes tends to show one of six categories of wrongdoing, including criminal offences, breaches of legal obligations, miscarriages of justice, health and safety risks, and cover-ups) and is made to a prescribed person (a regulator), or, in more limited circumstances, to a wider recipient.

Disclosures to journalists are “wider disclosures” under s.43G ERA 1996. For such a disclosure to be protected, the worker must: (a) reasonably believe the information is substantially true; (b) not make the disclosure for personal gain; (c) reasonably believe they would be subjected to a detriment by their employer if they disclosed to a prescribed person; or have previously disclosed the same information to their employer or a prescribed person; and (d) in all the circumstances, it must be reasonable for them to make the disclosure to the journalist.

The conditions are stringent. Journalists working with potential whistleblowers should advise them to seek specialist legal advice — ideally from a lawyer experienced in employment law and whistleblowing — before making a disclosure. See also the full guide to working with whistleblowers. Workers affected by NDAs are precisely the individuals the Press Justice Project supports.

The SRA warning notice: what it means for NDA validity

In March 2018 the Solicitors Regulation Authority issued a warning notice reminding solicitors of their professional obligations when drafting NDAs. The notice was issued in the context of high-profile cases in which NDAs had been used to prevent allegations of sexual harassment and other serious misconduct from coming to light.

The SRA stated that solicitors must not draft agreements that attempt to prevent signatories from making disclosures required or permitted by law, including protected disclosures under the ERA 1996, disclosures to regulators or law enforcement, or cooperation with police. An NDA drafted to suppress evidence of a crime — for example, an agreement by an alleged victim of assault to say nothing in exchange for compensation — may itself be unenforceable as contrary to public policy and potentially constitute an attempt to pervert the course of justice.

The SRA guidance does not make all workplace NDAs invalid. It specifically addresses NDAs that are used to conceal wrongdoing or to prevent lawful disclosures. A legitimate NDA protecting genuinely confidential commercial information remains enforceable. Journalists should note that when an NDA has been drafted in apparent breach of the SRA guidance, its enforceability as a whole may be open to challenge.

Worker Protection (Amendment of Equality Act) Act 2023

The Worker Protection (Amendment of Equality Act) Act 2023, which received Royal Assent in October 2023 and came into force in October 2024, inserts a new s.40A into the Equality Act 2010. This provision imposes a positive duty on employers to take reasonable steps to prevent sexual harassment of their workers.

An employment tribunal can uplift a compensation award by up to 25 per cent where an employer has breached this duty. Employers who use NDAs to suppress evidence of workplace sexual harassment are acting in a manner fundamentally inconsistent with their duty to prevent such harassment. While the Act does not directly render such NDAs void, it reinforces the regulatory context in which they will be scrutinised and strengthens the position of claimants challenging their enforceability.

For journalists covering workplace harassment stories, the 2023 Act is significant because it establishes that employers have an active, enforceable duty — not merely a prohibition on direct harassment — and that concealing harassment via NDA sits in direct tension with that duty.

Publishing despite the NDA: the Defamation Act 2013 s.4 public-interest defence

When a journalist publishes a story based in part on information from an NDA-bound source, and the subject of that story brings a defamation claim, the journalist will typically rely on the Defamation Act 2013 s.4 public-interest defence. Section 4 provides a complete defence where the statement was on a matter of public interest and the defendant reasonably believed that publishing it was in the public interest.

The existence of an NDA is a factor the court will consider in assessing reasonable belief, but it is not a bar to the defence. A source who is bound by an NDA covering the subject matter of the story may be a less reliable corroborator than an independent witness, because the NDA may indicate they have already received compensation in exchange for silence. Journalists should seek multiple independent sources and documentary evidence wherever possible rather than relying solely on NDA-bound accounts.

The pre-publication legal read process is especially important in these cases. Establishing the s.4 defence requires demonstrating that the journalist followed responsible journalism practices: put allegations to the subject, considered their response, checked the information against other sources, and obtained legal advice. See the guide to the legal read process.

Publishing in the public interest: the journalist's position

The journalist who receives NDA-bound information is in a different legal position from the source who discloses it. The NDA binds the source. It does not, of itself, bind the journalist who receives the information by lawful means. The journalist's position is governed by the law of defamation, privacy, and misuse of private information — not by the terms of a contract they never signed.

In some cases a subject may seek an injunction against publication on the basis of breach of confidence. If the information has the quality of confidence, was imparted in circumstances importing an obligation of confidence, and publication would be detrimental, the court may grant an interim injunction. However, the strong public interest in publication — particularly where the information concerns criminal conduct, serious abuse of power, or risk to public health and safety — will weigh against the grant of an injunction. The Human Rights Act 1998 s.12 requires courts to have particular regard to the Convention right to freedom of expression before granting relief that restrains publication.

See also the guides on misuse of private information and source protection.

Practical checklist when a source is NDA-bound

• 1Establish whether the information constitutes a qualifying disclosure under PIDA 1998 and whether PIDA protection is available to the source. If so, the NDA cannot prevent the protected disclosure.
• 2Ask whether the NDA was drafted in a way the SRA would flag as improper — i.e. does it purport to prevent reporting a crime or cooperating with a regulator?
• 3Seek corroboration from sources who are not NDA-bound. Documentary evidence, public records, and independent witnesses all reduce reliance on the NDA-bound account.
• 4Conduct a thorough pre-publication legal read. Document the steps taken to verify the story and to put allegations to the subject of the report.
• 5Advise the source to take independent legal advice before speaking further. Do not advise them yourself: that is not your role and could create liability.
• 6If an injunction application is anticipated, take immediate legal advice. The Human Rights Act 1998 s.12 procedure applies.
• 7Consider whether the source needs support beyond legal advice — workers affected by NDAs may benefit from contact with the Press Justice Project.

Key scenarios at a glance

Related guides

Primary sources

• Public Interest Disclosure Act 1998 (legislation.gov.uk)
• Employment Rights Act 1996 Part IVA (legislation.gov.uk)
• SRA Warning Notice: NDAs (sra.org.uk)
• Worker Protection (Amendment of Equality Act) Act 2023 (legislation.gov.uk)
• Defamation Act 2013 s.4 (legislation.gov.uk)
• Human Rights Act 1998 s.12 (legislation.gov.uk)

Frequently asked questions