The Lifestream of Jon Moss

How to Handle a Request for Confidentiality

March 14 2009, 9:47am

Confidentiality sounds like it really ought to be more of an issues for doctors or lawyers, rather than freelancers. But sooner or later, most freelancers wind up with a client who wants them to sign a non-disclosure agreement or otherwise guarantee confidentiality for a project. For certain companies, the number of projects they require NDAs on are growing: when every web designer, copywriter and other freelancer has the ability to broadcast current projects and clients on personal blogs and social networks, a little concern is understandable. NDA Basics Depending on where you’re based, a non-disclosure agreement can go by many names: confidentiality agreements, proprietary information agreements and secrecy agreements all amount to the same thing, subject to your local laws. No matter what title your agreement bears, though, it’s a legal contract that specifically notes knowledge or processes that a company wishes to share with you for the purposes of doing business — but doesn’t want to be widely available. By signing an NDA or similar contract, you agree to consider any information shared with you as confidential and not to discuss it with anyone besides your client — or any other individuals or companies your client says that you can work with. If someone says something they aren’t supposed to and violates an NDA, the consequences can be a little complicated. In order to enforce an NDA, a company must take the matter to court. Even if the contract was not actually broken, we can be talking about some very expensive lawyers. That means knowing your own responsibilities under an NDA is extremely important. A Freelancer’s Responsibilities Most clients with an NDA will want your signature before they’ll even mention the type of project they’re working on. Assuming your client is experienced in the ways of confidentiality agreements, he or she will want to ensure that your estimate and preliminary work will be covered by the agreement, as well as the rest of the project. While you might encounter a prospective client who wants to use an NDA to protect some brilliant idea he’s come up with, you’ll probably find that most established companies are more likely to use a confidentiality agreement to protect information that they provide to you, such as data collected through the company’s past projects. No matter what information the NDA specifies, though, there is an expectation of complete confidentiality once you’ve signed such a contract. Not only can’t you discuss those parts of a project covered by an NDA with someone else in your field, you should avoid telling your mom, your Twitter followers and anyone else you encounter. That includes even veiled comments. If you don’t like it, don’t sign the NDA: there are plenty of clients who don’t require them, after all. The specifics of who you can talk to and what you can talk about regarding specific information should be laid out in some detail in your NDA. If you’ll need to share information with a sub-contractor, make sure that information is included before you sign. Just like any other contract, someone telling you something different than what’s written down won’t hold up in court. I’ve heard of one case of a client asking a freelancer to sign an NDA that states the existence of the NDA itself was confidential: this seems like more of a twist thought up by a paranoid mind than something you might encounter. It’s an odd situation, but if you find yourself facing an odd situation make sure it’s not a warning sign of things to come. Negotiating an NDA Another NDA I came across essentially stated that I couldn’t say I worked on a particular project. If I signed the NDA, I wouldn’t be able to use the project in my portfolio or mention it on a resume. In my opinion, that sort of clause is out of line — from research I’ve done, it seems that such a clause may not hold up in all jurisdictions. If you encounter a project with a similarly strict confidentiality agreement, you do have the option of negotiating it. You can tell a client that your perfectly happy with the other terms of the project and that they’ll need to work on that clause for you. It’s more than reasonable to expect recognition for your work. Just as it’s fair for companies to ask you to keep a lid on their proprietary information, it’s fair for you to include the finished product in your portfolio when it goes public. You can request such terms in an NDA, down to a specific date when the confidentiality clause is no longer in effect. Lastly, if you’re worried by any terms of an NDA, it’s worth consulting a lawyer. Any confidentiality agreement is a contract and can have legal repercussions. While most freelancers aren’t in a position to run every NDA past a lawyer, it’s important to remember that only a legal professional can help you understand your specific obligations for each NDA.