With the immediacy of the Internet, non-disclosure agreements (NDAs) with the press have become an inevitable component of media relations. But getting journalists to sign them can be a challenge in itself.
For journalists, the NDA can be dreaded - it's a legal deal that restricts them from telling all. But for media relations executives, it's a safety net protecting client information.
Many NDAs are related to restricting competitive information about new products, although companies/agencies will use them during crucial business developments.
Even before the Internet's popularity, many companies and agencies have used NDAs. But today they are commonplace.
The Catch 22 in PR today is that journalists who are affiliated with both print and online products may sign NDAs for stories that will later appear in magazines or newspapers, but the potential exists for that news to make it online much sooner if the parameters of the arrangement aren't clear and if journalistic mores take a second seat to getting the scoop.
For those in PR, NDAs aren't as unpalatable as they are for journalists because PR agencies and their employees historically have been bound by clients to protect the information - from plans to recoup financial losses to product R&D projects - they have access to.
But it's also made the NDA a difficult process to troubleshoot and manage. "You can't assume that if one editor agrees, that everyone agrees," says Rochelle Nemrow, VP of Press Access Inc., the Boston-based editorial research firm with more than 600 clients. "Because if you go into this blind, there is a much greater risk. You need to be clear as to what information applies and who else might need to be non-disclosed."
Every week, via our "Media Insight" feature, PR NEWS turns to editors, reporters and producers at media outlets all over the nation to find out the intricacies of how they do business. And while we have yet to conduct a formal survey on this matter, we can tell you that many of those we speak to at operations covering technology and related issues accept the NDA as a mainstay of media relations in the 1990s.
But that doesn't mean all journalists will sign them. Editors at CNet's News.com site are emphatic about their refusal to sign NDAs, but, ironically, it is online content providers such as CNet that have prompted the push for NDAs.
"With the Internet, you have timeliness, the ability to go into detail, many eyes and the opportunity for discussion [elements that factor into the logic behind NDAs]," says Mary Curtis, CEO and president of Pacifico, Inc. Integrated Marketing Communications, a San Jose-based firm specializing in technology and that uses NDAs to protect trade secrets. Curtis says that NDAs are being used more today than they were just two years ago and are becoming "standard fare."
But there are lines you don't want to cross when an NDA is in the offing or has been signed. An NDA should never be used as enticement to get a journalist to write a story in an effort to gauge marketplace interest. And it needs to be regarded as a living document that might be updated should information change.
A View From The Editor's Window
If Phil LoPiccolo, editor-in-chief of Computer Graphics World, a monthly magazine (70,000 circulation), is any barometer for how NDAs are seen by those in the media today, then the NDA is here to stay. Although he doesn't know the exact number, he says his editorial staffers sign dozens of NDAs over the course of a year.
Still, LoPiccolo, who is also editor-in-chief of Digital Magic (a bi-monthly with a 30,000 circulation) says he leaves the call on whether an NDA is signed up to the discretion of individual writers, although many times owner PennWell Publishing's legal eagles will review the NDA.
There is, however, one standing rule: "We won't sign an open-ended agreement," LoPiccolo says. He adds, too, that editorial staffers weigh the necessity of such a document. "In the past, reporters would be zealous about what they found out through an NDA and our concern would be whether or not this product would ever see the light of day," he adds. "Sometimes, they would just turn out to be vaporware."
And Steve Outing, who pens an online column for Editor & Publisher, cautions that NDAs are often an "unpleasant" experience for journalists. "I want the PR professional to be able to step into my shoes and understand the moral and ethical objections we have as reporters." (Press Access, 617/542-6670; Pacifico, 408/293-8600; Phil LoPiccolo, 603/891-9160; Steve Outing, 305/543-7810)
A Sample NDA Agreement
This is an agreement between the person or corporation named below and the fictitious ABC Software. The person is receiving confidential disclosure of certain proprietary, technical or commercial information of ABC Software, including information concerning current and future products and services, and ABC would not make such disclosure without recipient's agreement to maintain confidential treatment:
1. Recipient will not disclose or use any business and/or technical information of ABC Software concerning the software or otherwise designated orally or in writing as "confidential" "proprietary" or in like words ("information"), without the prior written consent of ABC and then only to the extent specified in such consent. Information may be used and disseminated within the recipient's own organization, but only to the extent reasonably required for the purposes hereof.
2. Recipient shall maintain the information under lock and key, designated as "company confidential" or equivalent, with access only by those employees specifically authorized. Recipient shall authorize access to the information only by its employees who have entered into appropriate confidentiality agreements, and recipients shall ensure compliance with the terms of such agreements.
3. Such restrictions on use or disclosure of information described in paragraphs 1 and 2 do not extend to any items of information which (a) is publicly known at the time of its disclosure, (b) is lawfully received by the recipient from a third party not under a similar confidential agreement with ABC Software, (c) is published or otherwise made known to the public by ABC Software or (d) was generated independently by recipient before disclosure by ABC Software.
4. Recipient acknowledges that a violation of this agreement would cause irreparable harm to ABC Software for which no adequate remedy at law exists and the recipient, therefore, agrees that, in addition to any other remedies available, ABC Software shall be entitled to injunctive relief to enforce the terms of this agreement. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney's fees incurred because of any legal action arising in relation to this agreement.
5. Upon ABC Software's demand, recipient shall return any written information and all physical media on which information was received from ABC Software, including any copied thereof, with a letter confirming that the information has in no way been reproduced or copies or that all copies have been returned. The obligations of this agreement expire (5) years after this date.
6. This agreement shall be binding on recipient and its successors and assigns shall be governed by the laws of MA and shall remain effective with respect to any information which is disclosed to the recipient within (1) year of the date of execution unless the undersigned notifies ABC Software that subsequent disclosures are not to be included within the terms of this agreement.
Source: Press Access