The trouble with NDAs

Let’s face it: Non–Disclosure Agreements (NDAs) are a pain in the backside for freelancers. Not only are NDAs undecipherable, they prevent you from displaying your work and limit your ability to take on related projects.

Not just a piece of paper

A while ago, a freelance friend was discussing an NDA they’d been made to sign. It was described to them as a ‘formality’ and, when they’d asked about displaying their work, they were told that ‘would be ok’.

The NDA included a clause stating the opposite. If displaying the work is fine, then why not take that clause out?

NDAs are not a ‘formality’. As with any contract, you have to assume that the person issuing it is serious about the implications of breaking it.

Describing an NDA as a ‘formality’ suggests to me that the issuer doesn’t understand what they’re asking you to sign. That worries me and it should worry you, too.

The ‘secret sauce’

In the tech industry, it’s common for a potential client to think that their idea is so life-changing, they need an NDA just to talk about it. I’ve experienced this on a few occasions.

A few days before I sat down to write this, I received a request for proposal that read:

I have two ventures at the moment, both cannot be disclosed at the moment due to legal reasons. However, once an NDA is signed, all details can be presented.

One bitten, twice shy

My first experience of this kind of upfront NDA was about five years ago. A client I’d been working for was partnering up with another firm to add some functionality to the site.

My client wouldn’t tell me what the functionality was, and neither would the firm unless I signed an NDA. I was uncomfortable about it and made that clear, but ultimately caved as I was new to the game.

An initial Skype meeting with the firm revealed that the functionality was…a learning management system. What was discussed could have been talked about without an NDA.

By the end of the call I’d already decided I no longer wanted to work on the project. I swiftly moved on, but it will come as no surprise that the client took three months to settle the final invoice.

That was the last NDA I signed.

When NDAs are OK

I don’t have a problem with the concept of an NDA. If I was hiring someone to do some work with me, I might even ask them to sign one.

The trouble with most NDAs is this: they’re full of complicated legal jargon, have unreasonable terms and are far too general.

For me to sign an NDA, it has to:

• Protect my reputation should something go wrong
• Be beneficial to both sides
• Be limited to a reasonable period (spoiler alert: five years is too long)
• Be specific about what it covers
• Be written in plain English
• Allow me to talk about the project after it goes live

If a client’s NDA doesn’t meet the criteria, I won’t sign it.

Why freelancers shouldn’t be asked to sign generic NDAs

The main issue freelancers face with NDAs is that it prevents them from talking about their work.

If the freelancer is paid handsomely for the privilege of not discussing their work, then fine, but often they’re not.

If you value and respect the freelancers you employ, why make it difficult for them to get work? Empty portfolios are a big problem for freelancers who have worked for clients that use punitive NDAs.

It’s not just about money, either. Freelancers choose their career path because they enjoy their work and are proud of what they produce. If they produce something special, perhaps even award-winning, it’s a shame if they can’t talk about their achievements or use it as a case study.

And there's another issue: NDAs limit a freelancers ability to work on similar projects with other clients. It's easy to breach the terms of the NDA without realising. This is an additional liability which hurts freelancers.

I would urge clients who use NDAs to consider what they’re asking freelancers to sign. Don’t just download a template and blindly enforce it.

If you need inspiration, Andy Clarke has produced a brilliant plain-English NDA that can be tweaked for your needs.