Information on Non-Disclosure Agreements

What are NDAs?

A Non-Disclosure Agreement (NDA) is an agreement that seeks to protect information by imposing obligations of confidentiality on the recipient of that information. That party (the Performer) agrees that they will not disclose certain information of the producer (the "Engager"), that they may obtain about the production or proposed production, to third parties.

An NDA can be a written agreement in its own right or as part of a wider agreement.

A Performer may be asked to sign an NDA for the following scenarios:

• Part of a contract a Performer receives by which they are engaged for a job (it will not be within a standard Equity Contract); which will contain conditions or receiving sides/scripts/material in order to audition for a project.
• Special stipulations included with the contract.
• In a settlement agreement where compensation is agreed in relation to settlement of a dispute or for premature termination of employment/engagement; or
• In a separate, standalone document.

The use of NDAs is widespread across the industry and not limited to film and TV production or commercials. They are also widely used within the games industry on voiceover and performance/motion engagements. As highlighted by our recent campaign, Stop AI Stealing the Show, the use of NDAs is standard with respect to content that has been produced or modified by automated means.

The UK has an unquestionably successful audio-visual industry with US studios, TV entities and streamers heavily investing in and/or commissioning many films and TV productions. Those productions are issuing NDAs which are largely based on US NDAs. Many of these NDAs are inappropriate and excessive for Performers (if not for any third party); infringe UK law, and, assuming UK lawyers were recently involved in their drafting/approval, could breach their professional conduct rules.

Equity recognises and fully respects the need to protect identifiable, valuable and substantive confidential information. It is in the interests of the entire Industry that NDAs (where needed) do this in a clear, legal, enforceable, fair and targeted way.

Bullying, harassment and abuse in the audio-visual industry

At the moment, many of the NDA agreements we see reflect poorly upon the industry, often intimidating and isolating Performers from those that support them. Performers are forced to sign documents which they have no hope of understanding or amending.

The result is that Performers often assume that they will be sued if they tell anyone anything about the production, even where they have been victims of or witnesses to a criminal offence.

This is all the more shocking five years since the Harvey Weinstein scandal highlighted the appalling misuse of NDAs, shook the film industry, and ignited the #MeToo movement. By now, we would have expected Engagers to be following best practice and not repeat past mistakes.

Equity has deep concerns about the damaging impact of NDAs on our fight to eradicate harassment and abuse from the audio-visual industry; and commits to combatting agreements and practices which serve to isolate and gag Performers.

NDAs issued pre-audition

Recently we have witnessed an increasing trend of issuing pre-casting NDAs to Performers minutes before an audition. This includes some of the more absurd uses of NDAs, in instances where Performers do not receive materials containing information about or details pertaining to the production, such as a script, character names or the title of the production — a Performer cannot protect or disclose information they do not hold or cannot identify.

Introducing NDAs at this stage also affects thousands more Performers than are subject to the normal and more standardised contractual process once a job is offered. Below are some of the most concerning malpractices:

• Seeking to prevent a Performer showing NDAs and audition materials to their own agent.
• Many productions don't come with a title.
• Performers often don't know the role they are playing.
• Performers never receive an actual script.
• In some cases, Performers receive content which is already in the public domain and is not drawn from the production for which they are auditioning.
• And more&helip;

This is not a legitimate and proportional use of NDAs to protect a production against inappropriate use of confidential information.

Equity calls upon the industry to remove the duress under which the Performers are placed whereby a Performer is obliged to sign an NDA as a pre-condition of their being auditioned or cast.

A proposed set of standards

Equity rejects the current excessive use of unnecessary, bullying and over-reaching NDAs. Equity asks the industry as a whole to better understand and manage the issues of confidentiality and to stand together against unreasonable NDAs.

Equity calls on production companies and other Engagers to consider the following before using an NDA:

• Crucially – is an NDA needed at all? Is the Performer going to be provided with any valuable confidential information in an audition or casting scenario? Genuinely confidential information would, in any event, be protected by, for example, the law of breach of confidence, copyright and data protection law (UK GDPR).
• Is it in plain English?  Does it contain clauses which are easy to understand?
• Will it be issued with reasonable time for a Performer to consider the terms and allow for consultation with professional advisors?
• Will it cause moral, legal or ethical issues by gagging the Performer?
• Does it duplicate or conflict with agreements already in place with the Performer?
• Will its use cause any other negative outcomes or effects?
• Is it fairly restricted in time?

The NDA must refer to the applicability of English and Welsh law, and jurisdiction of English and Welsh courts, and should not contain excessive or unrealistic liability clauses (e.g. a single Performer indemnifying the Engager’s group companies worldwide, or a single NDA lasting for excessive periods).

NDAs should NOT, expressly or impliedly, prevent a Performer from:

• Co-operating with a criminal investigation or prosecution
• Reporting an offence to a law enforcement agency
• Reporting misconduct, or a serious breach of regulatory requirements
• Making any disclosure required by law
• Disclosing in compliance with an order of, or to give evidence to, a court or tribunal of competent jurisdiction
• Disclosing information in accordance with our ‘whistleblowing provisions’
• Disclosing information about the agreement, or circumstances surrounding the agreement, to professional advisers, such as agents, their trade union, legal or tax advisors and/or medical professionals and counsellors, who are bound by a duty of confidentiality.

In addition, a Performer should have the express right to make disclosures (of the fact of an audition, casting or engagement) to a spouse, civil partner or close family. This is obviously necessary as a matter of basic safety so that the spouse etc knows what the Performer may be doing, and when and where. It may also be necessary to assist with learning or rehearsing lines. This right would come with the proviso that those individuals agree to keep confidential any information deemed so by the NDA.  

Performers required to enter into NDAs should be given adequate time to obtain legal advice on them and be encouraged to do so. It is totally unacceptable that many NDAs (often in incomprehensible legalese, based on US agreements and in tiny print) seek to threaten and isolate Performers, and are literally handed to them moments before they are due to start work (sometimes even after they have done the work).  

Performers should always be promptly provided with final and full copy of the NDA they have entered into, signed by or on behalf of the Engager.

Equity cannot accept that NDAs are also being used to assign or license intellectual property rights; and/or to grant to the Engager other Performers’ rights (as defined under the Copyright, Designs and Patents Act 1988); or that Performers are purportedly obliged to waive, transfer or remove their rights under the Act. Any assignment or abandonment of such rights should be by way of an express agreement or clearly specified contractual provisions and not bound up with the issue of confidentiality, which is confusing and misleading.

Above all, Equity calls upon the industry to immediately remove the duress and pressure under which Performers are placed, whereby a Performer is obliged to sign an NDA as a pre-condition of their being auditioned or cast.   

The Law/Legal Professional Regulation

Contractual consideration

As far as some of the NDAs used for auditions and casting that we have seen are concerned, there is some question as to whether they would be enforceable at all. For a contract to be enforceable, there has to be "consideration" provided by each party to the other party; that is, something of value. However, if the NDA provides that the consideration for the "Recipient" of the information for agreeing confidentiality is being given the information itself (for example, sight of the script), that is not something of value to the Performer. Rather, it is being provided merely so the Performer can be auditioned and/or cast.

Basic Contractual Principles

Even if an NDA is effective, it cannot be used to prevent the reporting of a crime as that would be contrary to public policy; nor, in general, can it oust the jurisdiction of the court in relation to potential civil claims. Accordingly, the blanket confidentiality asserted by some NDAs would not prevent, for example, a person reporting an assault suffered during an audition to the police, nor bringing a civil claim for compensation arising from the assault.

Statutory Protection

Those applying for jobs/engagements have statutory protection against — amongst other things — unlawful discrimination, harassment and victimisation, and the refusal of employment on grounds of trade union membership. They also have data protection rights and may have residual intellectual property and moral rights in their performance. NDAs would not be effective to override the exercise of such rights, and any attempt to do so (on the grounds that this would entail the disclosure of confidential information) would fail.

Professional Regulation

If UK solicitors have been involved in the drafting of NDAs that impose blanket confidentiality, they will have acted in breach of the Solicitors Regulation Authority's warning notice concerning such agreements and the Law Society's practice note on the subject should their involvement have post-dated the notice or note.