An NDA from Harvey Weinstein cost me my career – at last, banning them feels within reach

Why are these extreme confidentiality clauses still used in the UK to protect the perpetrators of abuse? asks Zelda Perkins in The Guardian

Samantha Morton (left) stars as Zelda Perkins and Zoe Kazan as journalist Jodi Kantor in a scene from the film She Said, about the journalists who broke the Harvey Weinstein story. Photograph: Universal Pictures/AP

Thu 15 Dec 2022 12.00 GMT

More than two decades ago, I walked into the offices of a law firm in Soho, my 24-year-old self confident that it would help me to expose and address the appalling behaviour of my then boss, the film producer Harvey Weinstein. His attempted rape of a new assistant while we were at the Venice film festival – on her first occasion alone with him – put me on the path I knew was right. The frightening but clear and proper course to justice.

But nothing could have prepared me for the ways in which the legal system would fail my colleague and me so thoroughly, or for the irreversible impact of entering – on our law firm’s advice – into a damages contract containing extreme confidentiality clauses, otherwise known as a non-disclosure agreement, or NDA.

Due to the enormous disparity of power and wealth between Weinstein and ourselves, we were given no choice but to sign the agreement. The NDA not only forbade us from talking about Weinstein’s behaviour, but also about our entire career at Miramax – to family, friends, medical practitioners including therapists, even to HMRC if questioned about the damages payment. We were to use our “best endeavours” to limit what we said in any future criminal or civil action taken against him, and let him know if we were approached . We were not even allowed to have a copy of the document that was to control our lives “in perpetuity”. And it seemed clear to us that we could face jail and financial ruin if we breached it.

She Said review – breaking the male silence around Harvey Weinstein

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My attempt to report on Weinstein’s behaviour cost me my career. While he collected Oscars, I endured job interviews where men openly questioned me about my “relationship” with Weinstein, but I was gagged from telling the truth. The inability to find a job or speak freely drove me to move my life abroad.

Today Weinstein is in an LA jail, awaiting a verdict from an LA court at his second trial for sexual assault and rape. He is already serving 23 years for sexual assault. She Said, the film about the two New York Times journalists who broke the story, is playing in cinemas around the world, exposing how his reign of terror came to be and the mechanisms that protected him. So why am I still having to talk about this issue, five years on from breaking my NDA to those New York Times journalists? I had believed that by uncovering the system that enabled Weinstein and others in power, things would change. In many places they have, but not here in the UK.

Over the past 25 years NDAs have become the default solution for settling cases of sexual misconduct, racism, pregnancy discrimination and many other human rights violations. They are sold as helping the victim by protecting their name, where in fact a simple one-sided confidentiality clause would do that. In reality NDAs serve only to protect an employer’s reputation and the career of the perpetrator, allowing abusers to continue their behaviour while victims lose both their jobs and the ability to warn others about the individual or the workplace. Settling an employment dispute involves agreeing not to take any further legal action – it should not be a deal to protect or hide abuse.

Zelda Perkins, former personal assistant to Harvey Weinstein, speaks to Parliament’s women and equalities committee in 2018. Photograph: Reuters

In 2018 I, along with others, gave testimony to the women and equalities select committee about how NDAs were being abused in the UK. The Conservative government vowed it would “end NDAs being used unethically” but the recommendations of the select committee and the following consultation by the Department for Business, Energy and Industrial Strategy were ignored. Not one change has been made. And so in workplaces across the country, abusers are still protected – and every week my email inbox is full of desperate messages from people (mostly women) being forced into silence.

They come from all industries – media organisations, corporations and public services. From the testimonies and data we are collecting, we know that NDAs also have a disproportionate impact on those who are already vulnerable. Black women are three times more likely to sign an NDA than white women. Women are five times more likely to sign an NDA than men.

But it doesn’t have to be like this, as we can see from progress in the US, Canada, Ireland and Australia. Over the last five years 15 US states have changed their legislation around NDAs and this November, in a historic move, Joe Biden supported a bill through Congress stopping the use of NDAs in cases of sexual misconduct. Ironically, on the same day, our deputy prime minister, Dominic Raab, claimed in the House of Commons, when questioned about an alleged NDA, that it was merely a “confidentiality agreement”. As a lawyer, he well knows the two are one and the same.

Although it is shocking that in the UK the legal mechanism that protected Weinstein is still protecting abusers, there are glimmers of hope. Earlier this year the Department for Education, in conjunction with Can’t Buy My Silence, the campaign I co-founded with Prof Julie Macfarlane in 2021, introduced a voluntary pledge for UK universities and colleges of higher education to stop using NDAs. So far 60% in England have signed up, meaning 1.5 million students are protected from being gagged about abuse.

The common sense behind this call has clearly been heard elsewhere – as last week the Lords added an amendment to the new higher education freedom of speech bill, banning the use of NDAs in universities and colleges in cases of sexual harassment, bullying or discrimination. If this becomes law then there is an even clearer signal to our government that it is time to change the system and outlaw this legal tool in all workplaces. To add to this the government has just backed legislation that would make sexual harassment in the street a criminal offence – this is a huge stride, at last acknowledging and protecting women from the daily abuses they endure.

There is nothing ethical about a legal agreement that hides bullying, racism or any form of assault and works purely to protect powerful wrongdoers. It would be both morally correct and economically wise to ban the use of NDAs. What a legacy it would be if Rishi Sunak were to make all workplaces safer and more productive – protecting not just women but anyone who faces discrimination or harassment.

How UK-EU trade deal will change relations between Britain and Brussels

Sam Fleming and Jim Brunsden in The FT

The future relationship deal struck between the UK and the EU (24 Dec 2020) will bring far-reaching changes, as both sides are forced to adapt to the end of Britain’s 30-year membership of the European single market

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The trade agreement between London and Brussels will offer UK and EU companies preferential access to each other’s markets, compared with basic World Trade Organization rules — ensuring imported goods will be free of tariffs and quotas. 

But economic relations between the UK and the EU from January 1, when the deal is due to take effect, will be on more restricted terms than they are now.  

“Everyone needs to get prepared for a situation next year that will be very different to today,” said an EU official. 

A trade agreement along the lines of the one negotiated between the two sides will leave Britain facing a 4 per cent loss of potential gross domestic product over 15 years compared with EU membership, according to the UK’s Office for Budget Responsibility. Failure to secure an agreement would have led to lost potential GDP of almost 6 per cent, the fiscal watchdog estimated. 

Below are some of the benefits conferred by the UK-EU future relationship deal, which also includes security co-operation — and the important areas in which Britain’s links with the bloc will fall short of existing arrangements. 

1. Trade in goods  

The EU and UK’s starting point for the future relationship talks was that they should lead to a deal with no tariffs on trade in goods between the two sides. They also wanted no quantitative restrictions on the volume of goods that could be sold free of tariffs.  

That was negotiated, meaning the deal will go beyond what the EU has done with any other advanced economy outside the European single market.  

But the agreement is still a very different state of affairs to membership of the EU single market and customs union. 

Once implemented, from January 1, a hard customs and regulatory border will exist between the EU and UK, and goods will face checks and controls that can be smoothed at the margins only by co-operation. 

The deal will include facilitations such as co-operation on trusted trader schemes, but none of these erase border checks. 

“The agreement provides for continued and sustainable air, road, rail and maritime connectivity, though market access falls below what the single market offers,” said the European Commission.

2. Fair business competition 

The EU’s offer on tariff-free trade was contingent on the UK agreeing to uphold a “level playing field” on fair business competition in areas such as environmental standards. 

Brussels was also keen to ensure the UK does not have unfettered scope to disburse state aid to prized industries, giving them a competitive advantage.  

The agreement includes common binding principles on state aid, enforceable in both sides’ courts, which would be able to recover illegal subsidies. 

It also includes a painstakingly negotiated “rebalancing mechanism” to deal with a situation where the sides’ regulations in areas such as labour rights diverge over time. 

The mechanism, which would be subject to independent arbitration, would allow the disadvantaged side to impose tariffs to restore fair competition. 

But, crucially for the UK, it will not be required to follow EU rules directly or be subject to the jurisdiction of the European Court of Justice. 

Being outside the European single market has other regulatory consequences for Britain. For example, UK businesses will no longer be able to assume that product authorisations from British watchdogs will allow their goods to be placed on the European market.  

3. Fish 

The deal creates a five-and-a-half-year transition period during which EU fishermen will have guaranteed access to UK waters. 

EU quotas in British waters will decline in the transition by 25 per cent compared with current levels, and this will have the knock-on effect of boosting how much UK fishermen can secure. EU boats currently catch about €650m of fish in British waters each year. 

Once the transition period is over, EU boats’ access to UK waters will in principle depend on annual negotiations between both sides. Those talks will also determine the overall quantities of different species that can be caught. 

Should EU boats’ access to British waters ever be revoked by the UK, the bloc will have the right to take compensatory measures. These include retaliatory closing of EU waters to UK boats, and the imposition of tariffs on British fish. 

The deal also links the UK’s access to the EU energy market to access to British fishing waters. 

The UK warded off EU demands for a cross-retaliation power to hit other parts of the British economy should a dispute over fish escalate. 

Still, the deal does provide a last-resort “safeguard” option that would allow either side to take emergency measures to protect coastal communities, subject to dispute-settlement arrangements in the agreement. 

The deal enshrines the principle that Britain is now outside the EU’s common fisheries policy: an independent coastal state with sovereignty over its waters. 

4. Financial services 

The City of London will exit the EU’s single market for financial services at the end of the Brexit transition period on December 31. 

Both sides have said that the new market access arrangements for UK and EU financial services companies should be based on unilateral decisions by Britain and the bloc, rather than be provided for in the trade agreement. 

These so-called equivalence decisions involve each side evaluating whether the other’s financial services regulations are as tough as its own. 

Banks and traders have acknowledged that the proposed system is more piecemeal than existing arrangements, and less stable. The EU did not announce any fresh equivalence decisions on UK access to the bloc’s markets alongside the trade agreement on Thursday, resulting in uncertainty in key areas including share trading and derivatives. 

The two sides plan to put in place a regulatory dialogue on financial services based on a separate memorandum of understanding. 

5. Migration 

Current British and EU expatriates have their rights safeguarded by the UK’s 2019 withdrawal agreement with the bloc, but big changes to migration arrangements take effect from January 1. 

Britons will no longer have the benefit of European freedom of movement: the right to go to any EU member state and seek to work and live there on the same basis as the country’s own citizens.  

Instead, Britons will rely on a visa-waiver programme to travel to the EU for short stays, and on member states’ national rules for the right to work.  

Ending free movement for EU nationals in the UK was identified by the British government as one of the benefits of Brexit, allowing the country to devise a new immigration system.  

6. Security 

The EU and UK have been at pains to emphasise the importance of continuing co-operation in the fight against terrorism and organised crime, although talks in this area were complicated by Britain’s determination to escape the ECJ’s jurisdiction. 

But ahead of the deal being finalised, EU chief negotiator Michel Barnier confirmed the sides had found ways to maintain “close co-operation” on crucial matters including the work of the bloc’s crime-fighting agencies Europol and Eurojust, and the sharing of criminals’ DNA data. 

Brussels said the deal “builds new operational capabilities, taking account of the fact that the UK, as a non-EU member . . . will not have the same facilities as before”.  

The deal establishes that security co-operation can be suspended if the UK breaks away from the European Convention on Human Rights. 

How capital captured politics - Why was TISA kept secret?

WikiLeaks has shown us that western democracies are now ruled by market forces that debase the very notion of freedom

• 
• • Slavoj Žižek
  • The Guardian, Sunday 13 July 2014 20.15 BST

'The Trade in Services Agreement prohibits more regulation of financial services, despite the fact the 2007-08 meltdown is generally perceived as resulting from a lack of regulation.' Photograph: Andy Mueller/Reuters

In May, an international trade agreement was signed that effectively serves as a kind of legal backbone for the restructuring of world markets. While the Trade in Services Agreement (Tisa) negotiations were not censored outright, they were barely mentioned in our media. This marginalisation and secrecy was in stark contrast to the global historical importance of what was agreed upon.

In June, WikiLeaks made public the secret draft text of the agreement. It covers 50 countries and most of the world's trade in services.

It sets rules that would assist the expansion of financial multinationals into other nations by preventing regulatory barriers. It prohibits more regulation of financial services, despite the fact that the 2007-08 financial meltdown is generally perceived as resulting from a lack of regulation. Furthermore, the US is particularly keen on boosting cross-border data flow, including traffic of personal and financial data. Despite all this, we heard little about it.

Yet is this discrepancy between importance and secrecy really surprising? Is it not rather a sad but precise indication of where do we, in western liberal democratic countries, stand with regard to democracy? A century and a half ago, in Das Kapital, Karl Marx characterised the market exchange between worker and capitalist as "a very Eden of the innate rights of man. There alone rule Freedom, Equality, Property and Bentham." For Marx, the ironic addition of Jeremy Bentham, the philosopher of egotistical utilitarianism, provides the key to what freedom and equality effectively mean in capitalist society. To quote The Communist Manifesto: "By freedom is meant – under the present bourgeois conditions of production – free trade, free selling and buying." And by equality is meant the legal formal equality of buyer and seller, even if one of them is forced to sell his labour under any conditions (like today's precarious workers).

The main culprits of the 2008 financial meltdown now impose themselves on us as experts leading us on the painful path to financial recovery. Their advice should trump parliamentary politics. Or, as Mario Monti put it: "Those who govern must not allow themselves to be completely bound by parliamentarians." What, then, is the higher force whose authority can suspend the decisions of the democratically elected representatives of the people? As far back as 1998, the answer was provided by Hans Tietmeyer, the then governor of the Deutsche Bundesbank, who praised national governments for preferring "the permanent plebiscite of global markets" to the "plebiscite of the ballot box".

Note the democratic rhetoric of this obscene statement: global markets are more democratic than parliamentary elections, since the process of voting goes on in them permanently (and is permanently reflected in market fluctuations) and at a global level, not only within the limits of a nation state.

This, then, is where we stand with regard to democracy, and the Tisa agreement is a perfect example. The key decisions concerning our economy are negotiated and enforced in secret, and set the coordinates for the unencumbered rule of capital. In this way, the space for decision-making by the democratically elected politicians is severely limited, and the political process deals predominantly with issues towards which capital is indifferent (like culture wars).

This is why the release of the Tisa draft marks a new stage in the WikiLeaks strategy: until now its activity has been focused on making public how our lives are monitored and regulated by the intelligence agencies – the standard liberal topic of individuals threatened by oppressive state apparatuses. Now another controlling force appears – capital – which threatens our freedom in a much more twisted way: by perverting our very sense of what the word means.

Nation states are too small to fix global problems

We need a debate about tackling international problems, rather than hankering for some mystic past in which country was king

• 
• • Chris Huhne
  • The Guardian, Monday 23 June 2014

‘The greatest democratic problem today is the weakening power of the nation state faced by threats stretching beyond its borders.' Illustration: Andrzej Krauze

Jean-Claude Juncker may not be the right answer, but his candidacy for the presidency of the European commission is at least a response to the right question. The process by which he rose to lead the European People's party list – which then emerged as the largest group in the European parliament – was an attempt to engage voters in the European decisions taken in their name. As such, it confronted the central political issue of our times.

We live in a world of increasingly global problems, ineffective national solutions, and consequent disillusion with democratic politics. These tensions will ultimately prove as great a threat to our democracy and our values as the totalitarian regimes of the 20th century. Who cares about pretentious, powerless politicians? Powerlessness is stealthy, insidious and corrosive to our belief that politics matters. At least Europe has attempted to respond by electing its supranational legislators.

It is, though, a work in progress. Europe is full of talk of the "democratic deficit", even though EU institutions are the only transnational bodies with any elected component. Nor are the voters impressed. Even in Europe, there is scant understanding of the new transnational realities. The European parliament elections showed a yearning for simple, nationalist solutions.

Nigel Farage, Geert Wilders and Marine Le Pen are tribunes of nostalgia for national certainties. Yet scarcely any problem that people care about passionately is any longer susceptible to a purely national solution, even by a country as big, powerful and besotted with the perfume of sovereignty as the US. Yesterday's American hubris is today's Iraqi disaster.

Conflict resolution? Most recent conflicts have begun within societies, not between them. Last week's UN report noted that there are now 51 million refugees and internally displaced people across the world, half of them children. This was the highest level since the second world war, and mainly due to internal conflict in Syria, South Sudan and the Central African Republic.

Yet the UN is no nearer to developing a legitimate template that can impose order in the increasingly common phenomenon of the failed state. Afghanistan, Yemen and Sudan have all been horrible warnings of what can follow from internal collapse, all with consequences far beyond their own frontiers. Ominously, Pakistan is on many experts' danger list, and it is a nuclear weapons state.

Even an issue like wealth and income inequality, once the meat and drink of class-based national politics in the old democracies, is not immune. Inequality is likely to grow, as Thomas Piketty has argued. National solutions will not work. High tax rates in one country are liable to be undercut by competitor countries, sometimes gleefully and deliberately, as in the case of George Osborne's explicit decision to cut corporation tax rates. The only solution is international agreement on tax avoidance, evasion and minimum tax rates. Goodbye nation state.

Take the prosperity brought by large-scale mass production. The US is so rich in part because of its huge domestic market. If we want our European companies to produce at scale, they have to be able to make the same product for the whole European market. For such a single market to work, every national market has to have similar consumer safety, health and environmental standards. That means at least Europe-wide – and maybe soon transatlantic – rule-setting. Goodbye nation state.

Then there is clean water and unpolluted air. Climate change alone makes the case for international action: without it, we are heading inexorably for such extreme weather events that our prosperity will be cataclysmically undermined. Ask the insurers: one group of private companies only too aware of the rising costs and damage of climate change.

Take even an area traditionally central to the nation state, such as crime. The European arrest warrant and speedy extradition are responses to the easyJet age. Cybercrime disrespects frontiers as readily as air or sea pollution. Fraud in London may begin in Singapore, and involve counterparties in Zurich. Policing is international, or it is flat-footed.

If we cannot grasp these global issues – fundamental to our future prosperity and to our belief in the efficacy of the public realm – the disillusion with national politics will fester. When problems are global, solutions must match. Power is increasingly going to be wielded supranationally. That, in turn, brings the challenge of how to make politics work across language and cultural barriers.

This is not a counsel of despair. We have solved global problems such as the hole in the ozone layer. There are also examples of successful, multilingual democracies that provide a model for the public accountability of international power: India, Switzerland and Canada. (I could add Belgium and Luxembourg, but that is more contentious.) Language barriers may even melt as voice-recognition technology gives everyone a hand-held interpreter.

But we need a public debate about where the real problems in our democracy lie, rather than hankering for some mystic past in which powerful nations resolved simple problems with the smack of firm government. David Cameron needs to spell out some home truths to his own party, and start to provide some answers himself.

The greatest democratic problem today is the weakening power of the nation state faced by threats stretching beyond its borders. The nation's weakness is fatally wounding the prestige of its political elites. Pity the mediocre Juncker, for he carries all the expectations of this new and frightening world.