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Comment by hliyan | Hacker News Reader

Should a private contract that requires a citizen to sign away a fundamental right (the right to say something that is not confidential, is objectively true and does not incite violence) be enforceable?

Not sure if all three conditions apply here though.

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You can’t be forced to sign away your rights, but you can make an agreement to enter into an arrangement with confidential information with another party and agree to penalties if the contract is broken.

Making anyone free to reveal anything without consequences even after entering into an agreement about it isn’t going to work. You’re probably thinking only about the narrow case where a company is wrong and the employee is whistleblowing, but that is protected when done through the right channels.

However this wasn’t really whistleblowing. This was someone trying to make profit on her own book and sell more copies by sharing info she agreed not to.

Whether or not the whistleblower makes a profit is kind of irrelevant though.

  > On the simplest level, a whistleblower is someone who reports waste, fraud, abuse, corruption, or dangers to public health and safety to someone who is in the position to rectify the wrongdoing. [0]

You'll find variations in wording but the definition is fairly consistent. If you go look at the requirements to be a *protected* whistleblower (as opposed to just a whistleblower) then it's that you have to have made an effort to report the issue to someone with the power to resolve it. The specifics can vary by job, so I don't know if she is protected or not. IANAL

So, you'll still be protected as long as you took the right steps. These usually include oral reports btw. There's no condition that prevents you from writing some tell all later. In fact, it's not that uncommon. Especially given that if you're a whistleblower you might end up making yourself unemployable. So personally I'm fine with making money from a book deal and speaking deals. Their time is still as valuable as anyone else's, right? What matters is if procedure was correctly followed. IMO it's like people making money filming themselves doing charity. Yeah, I'm not sure that's the greatest thing but at the end of the day the charitable actions are performed, right? May not be the ideal case, but I'd rather someone do something good for the wrong reasons than for them not to do good ¯\_(ツ)_/¯

I'll also add that there's many whistleblower programs that will pay you to blow the whistle. Usually it'll be in the form of a percentage of the fine issued against the offending entity. The IRS offers 15-30%[1].

[0] https://www.whistleblowers.org/what-is-a-whistleblower/

[1] https://www.irs.gov/compliance/whistleblower-office

In this article, I believe the UK is asking this same question. It will be interesting to see where they land; I suspect this is why the author hasn’t had to pay any fines yet.

She wasn’t required. She had the agency to choose not to sign it.

Consider that you have no agency if a gun is pointed at you, and that you do have agency if the gun is a water pistol. In your mind, does everything in between exist in a spectrum, or do they fall into one of the two buckets into which the above two scenarios fell? I.e. is your conception of agency binary or continuous?

I don't think that matters in terms of whether it is even enforceable. I could sign a document allowing management to take my first born son but them doing so is not legal. "But he signed it!"

Sure. Was that what happened here, or was it an everyday contract to enforce confidentiality in return for some benefit?

If people are being forced to sign anti-disparagement agreements “everyday”, I think that is pretty concerning.

She was forced to sign it?

Hard to know. If she did not sign it was she waiving her severance package? Perhaps she signed it believing it was unenforceable.

I suppose when one side has lawyers, we all need them now?

https://www.law.cornell.edu/wex/unconscionability

You could also sign an NDA. And then you'd be bound by that NDA to not disclose the information it is protecting. Should penalties from that should also be non-enforceable because it would limit what you can say?

We aren't allowed to sell ourselves into slavery.

A significant difference is that it is not legal to own slaves or trade in slaves. That makes contracts for the sale of slaves inherently unenforceable.

It is not illegal to refrain from speaking. If you want to enter into a contract that requires you not to speak under certain circumstances there is probably nothing inherently unenforceable about it.

I'm pretty sure for example it would be legal for the Diogenes Club [1] to expel you if you violated their no talking rule, if someone would actually make a real Diogenes Club.

[1] https://en.wikipedia.org/wiki/Diogenes_Club

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