Gagging For It -> NDAs & the Engineering of Consent

The Smell of Non-Disclosure in the Morning

You may have noticed the rise of Corporate NDA culture, mainly comprising of gagging orders, confidentiality agreements, non-compete clauses, injunctions and even superinjunctions.

This matters. Especially in a so-called free society.

Trade Secrets

If you see something at work that your company relies on to make its money, this could be defined as a trade secret.

That is what Non Disclosure Agreements (NDAs) are supposed to be for.

If you sign one, you can’t talk about what you know.

E.g. the formula for Coca Cola or a design for a building or a new piece of technology.

There are supposed to be exceptions – if something criminal is going on, then technically you can break the NDA.

But in reality, few people do.

For fear of reprisals.

Having to pay back the money.

Being made homeless or losing one’s family.

Corporate Criminality is very hard to prove and few whistleblowers tend to know their rights, so large scale corporate criminality often goes unchecked.

Top Spin

In the following case a tumble dryer manufacturer is gagging its own customers to prevent them from telling the world the manufacturer sold them tumble dryers that catch fire.

In America victims of fracking have complained that flammable gas comes through their taps due to changes in the water table.

Many were gagged.

But these aren’t trade secrets. This is inconvenient truth.

For large corporates, it’s reputational risk.

The risk that fewer people will do business with you because you’ve taken short cuts on health and safety.

They’re effectively defrauding investors, consumers, the general public, the press, regulators, the government, and other people and entities with whom they do business.

News is what a chap who doesn’t care much about anything wants to read. And it’s only news until he’s read it. After that it’s dead.

Evelyn Waugh

News is something somebody doesn’t want printed; all else is advertising.”

Randolph Hearst

I Never Argue with a Man Who Buys Ink by the Barrel


In the banking industry, victims of bank fraud are frequently gagged by the bank after having been defrauded.

They typically accept such conditions to be allowed to access a sum equal to just a small fraction of the amount of money that the bank will have stolen.

(I’m not using any names here so I think I am on safe ground!)

Here is the Mail piece on Tumble Dryer NDAs.

Note the use of “Stay silent or” in the box on the right.

Engineering of Consent

Hollywood producer Harvey Weinstein famously gagged many of his victims and his own secretary (using London-based law firms) to protect his reputation.

Was the delivery of sexual assault, in pure business terms, an essential part of the business model?

How else could you justify covering up rape as a trade secret?

If a film producer’s reputation is treated as non-tangible “Good Will”, “Intellectual Property” or even a “tradeable asset” then it follows that an organisation will want to leverage its assets and trade on its perceived value.

I am not saying that NDAs for sexual violence are morally acceptable, but under the guilt-free, shame-free, profit-maximising psychopathic conventions that govern corporations, such behaviour makes perfect sense.

By protecting the “Brand” you protect the shareholders, which you are legally obliged to..

So in the case of Weinstein hiring ex-Israeli Military intelligence investigators Black Cube to go after rape victims, this would have just been his company checking up on a few routine compliance matters.

It’s where the free market logic takes us.

Using the idea of information as a tangible, legal, biological unit that can be deployed to one’s favour or detriment, the metaphor takes on a new potency.

Kelly Bachman called out Harvey Weinstein

Here is the original Edward Bernays article entitled Engineering of Consent:


Now that elections have been announced in the UK, we can expect a lot more skewed reporting with a sprinkling of strategic silence.


Culture Wars: When ‘Consent’ means Rape

Adultery just made an appearance in the NYT Ethicist Column:

  1. The reader claims although he and his wife love each other, she’s been very ill and has said he can have affairs.
  2. He’s agonising over whether to be honest about his situation with future sexual partners.
  3. He disclosed his circumstances on a dating site and ended up being called an adulterer and a ‘dirty old man’.

Here is the Ethicist’s reply:

Marital vows should not, in ordinary circumstances, be subject to renegotiation. But you have taken your wife’s declaration to mark a departure from ordinary circumstances. What now? Sex requires the consent of all parties involved, and real consent rules out substantial misrepresentation. So you’ll have to find a partner who’s O.K. with your situation. This, as you’ve discovered, may be difficult, given the attitudes of the women on your dating site, most of whom will want at least the prospect of a romantic relationship. (You refer to having your wife’s permission; some of your respondents may have wondered whether she really felt she had a choice. But presumably you’ve decided that her consent was in fact full-hearted and freely given.)

So what is Consent anyway?

This bit:

 Sex requires the consent of all parties involved, and real consent rules out substantial misrepresentation.

Ok, so this is interesting. We’re now talking about full consent and partial consent. Where partial consent would be based on incomplete or unreliable information.

a.k.a. Alternative Facts / Unknown Unknowns.

How many of Weinstein, Spacey or Savile’s alleged victims could be argued to have consented?

On the grounds they were free to reject their alleged assailant’s advances?

It wouldn’t require a particularly skilled lawyer to make such an argument.

Not if the courts put the onus on victims to prove, without evidence, that they refused to consent.

Culture War

November 2017 marks the 500th anniversary of Martin Luther kickstarting the Reformation by nailing his demands to a Wittenberg church door.

Sexual Reformation

The smart people at the Spectator recently found a way to combine the Westminster fallout from the Weinstein Sexual harassment scandal with the anniversary of Luther’s Reformation.

They likened the media frenzy about sexual abuse in Westminster to a witch hunt and painted it as positively Puritan.

Even the Conservative Woman decided to get in on the act and attack the left’s feminism for depriving men of sex.

Yes that’s right – The Conservative Woman!

So what would a real Puritan have to say about all this?

Peter Hitchens attacks the Jihadi Left.

When Rape becomes Consent

Under certain circumstances actual rape, as above, is reclassified as consent.

What about the other way around?

In the British Spycops case several law-abiding UK campaigners ‘consented’ to sex with undercover police who had infiltrated their activist groups by using false identities and lying about the state-funded nature of their motives.

In one case a policeman fathered a child with an activist — before going missing.

One victim has referred to this as Institutional Rape.

Given the seriousness of these crimes and the fact that they were carried out by law enforcement officers following orders, it is staggering that there hasn’t been a full Inquiry launched so as to ensure complete transparency about this chapter of our history and to be able to learn lessons and move on.

Instead we face more cover-ups as our cowardly leaders close ranks once again and teach us that they literally rape with impunity.

 Sex requires the consent of all parties involved, and real consent rules out substantial misrepresentation.

PM Theresa May and current Home Secretary Amber Rudd will both be fully aware of these cases.

But there’s a culture war being played out.

Both have presided over failed Child Sexual Abuse Inquiries again involving Westminster Paedophiles.

The stakes are high and until May or Rudd chooses to end the culture of abuse, the reign of terror will have no end.