E. Mark Windle 4 March 2023
Right, let’s get this straight. The creation and implementation of a non-disclosure agreement (NDA) is to guard privileged trade or personal information. As such, it is one way of interpreting the UK’s Data Protection Act, which gives individuals and organisations the right to privacy, and control over how divulged information is used. From a ghostwriter’s or biographer’s perspective, NDAs are a necessary part of the day job when working with clients. In some cases, as with mutually agreed (or “two-way”) NDAs used in commercial situations, it can even protect the rights of both parties.
The theme of NDAs and writer responsibilities to uphold their terms has raised its head most recently as a result of the kafuffle between former Health Secretary Matt Hancock and political journalist / writer Isabel Oakeshott. The leak of over 100,000 WhatsApp messages by Oakeshott and The Telegraph has led to a mountain of potentially far-reaching incriminations, adding to Hancock’s already tainted reputation during and since the Covid pandemic. This week’s main talking point from the leaks has been his rejection of advice presented by Chief Medical Officer Chris Whitty to test all residents going into care homes in England. A matter denied by Hancock but as yet to be elucidated.
While there may be a legal and moral obligation for writers to work within the confines of an NDA, there are no shortage of examples where they have been used in malevolent ways; ensuring that the dirty linen of unscrupulous commercial or institutional entities are kept firmly in the wash box, and that mouths of employees or contracted individuals are zipped tightly shut. The fact that in 2019, Matt Hancock pledged to remove NDAs used in the NHS, with the intention of giving whistle-blowers the freedom to speak out about concerns within the organisation, is an irony and at odds with his behaviour now.
As far as Isabel Oakeshott is concerned, I reckon I could easily pick out those individuals from a crowd who would rather exert their knee-jerk attack on her integrity as a journalist than defend her actions for what may turn out to be the greater good. Possibly the same people who feel Matt Hancock was only doing his job to the best of his abilities in unprecedented times. Hmm.
Either way, both parties are equally unwholesome. Only sinners and no saints feature in WhatsAppgate. Along with her professional relationship with Michael Ashcroft and Biteback Publishing, the company that published Hancock’s memoir, Oakeshott’s past trail of scandal-mongery was already strewn, with – yes – more leaking of Tweets, text messages and emails. Then again, that only makes the current situation more odd in that Hancock thought it a wise move to share all with this particular individual for his book.
And hang on a minute. At present we don’t know the actual nature of what the NDA terms were, or the fine detail of how they were breached. Pro-Hancock Oakeshott-haters shouldn’t forget that breaching an NDA can be legally upheld if failure to disclose information would otherwise stash a criminal act out of sight, or if the exposed content could be used as evidence in court. The problem is that these are often retrospective legal findings; telling all is a risk that the potential exposer has to weigh up themselves before taking the leap. Let’s see how Oakeshott’s “in the public interest” argument stands up in court. The Telegraph has reportedly been sifting through the messages for months. How much content is an indictment of Hancock’s own or other colleagues’ past actions will all come out in the wash over time.
The legal ramifications of a data breach, as all journalists, newspapers and publishers are acutely aware, can include a court injunction to stop further bean-spilling as a minimum. Then there are a couple of biggies; a client claim for damages, or a fine imposed by the Information Commissioner’s Office of up to £17.5 million for misprocessing of personal information, including data leaking. No doubt damages will be one hole Hancock is going down, but you can bet Oakeshott and The Telegraph have their backsides covered.
There’s no question that elements of the Data Protection Act and the GDPR relating to the non-sharing of data, and the collection and processing of minimum information required “for purpose only” have been contravened. But there is something to consider about the spirit of the law. Let’s not forget Hancock and the Tories have a lot answer for. Where to even start? The care home scandal, denials about national shortage or distribution issues of PPE (those who know, know – I was working in ICU at the time), NHS staff “rewarded” with a 1% pay rise (actually a cut below the rate of inflation), test and trace contracts worth billions of pounds dished out to Tory pals. Oh, and there’s the matter of an extra marital snog with an aide on CCTV during social distancing restrictions.
Let’s just hope the Scales of Justice prevail, unless of course Lady Justice herself is in on the act.
(Copyright 2023). E. Mark Windle is a freelance writer and biographer, working independently, as a senior writer with Story Terrace (London, UK), and for Sheridan Hill / Real Life Stories LLC (North Carolina, USA). Contact him via https://windlefreelance.com/contact/