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Comment by yulaow | Hacker News Reader

Just a question partially unrelated: Since when it is legal to make a non-disparagement agreement? It is like a wtf limitation of freedom to speech and tell the truth

Never ever heard of something like this in EU and I can find only articles related to US. Anyone can instruct me?

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Imagine you want to settle a dispute with someone, and agree that you won't pursue it further in court. Generally, that's a very wise thing to do, when possible. Preparing for and doing a trial is extremely expensive and disruptive. Rarely is your own case as strong as you feel emotionally, and you truly have no flipping idea if you'll win. Even if you do win, it can be appealed. When all the appeals are done, even if you still won, can you even collect all the money? And what about the years of your life gone by?

OK great. So, you're able to settle on terms both parties find awful -- but better than the alternative. Whew. But a month after you do, your opponent might go out there trash-talking. Then you do, in response. And your whole settlement has unraveled.

As a result, it is entirely normal and appropriate for two parties who aren't stupid, to agree to remain silent.

If the settlement has one party paying the other (as is often the case), you can imagine that they will pay somewhat more for a final settlement -- one that doesn't unravel -- because that's worth more.

It's nothing to do with gags or free speech. It's just the kind of painful common sense you acquire from having gone through any sort of legal dispute -- or if you haven't, that hopefully your attorney has, and hopefully you are listening to her advice that you're paying for.

In general there is no legal or moral barrier to being paid for your silence, as long as you are not covering up an actual crime by doing so.

Keep in mind that this isn't an employment contract clause, it is a cash bribe to stay quiet. Your freedom is not impaired: you have the choice between saying whatever you like or taking the money.

No judgement on GH but isn't a cash bribe to cover up harassment exactly that - covering up a crime? California doesn't have state laws against harassment?

There are civil and criminal statutes, yes. Presumably nothing criminal occurred or the contract is unenforceable.

I'm pretty sure those are civil laws and involve financial penalties [fine], not jail time.

A crime is a misdemeanor/felony/etc, not a fine.

I'm not a lawyer tho so I could be wrong.

With the massive prevalence of twitter, facebook, tumblr and other social platforms where people not just speak about work but are actually hired in this day because of their crowd appeal, I think these agreements are a lot less about covering up crimes.

Far more torrid things have happened at the biggest companies in the world. Stuff like outright sexual favors for advancement. Just bad stuff, the big difference seems to be active HR, active corporate attorneys and the general ban on talking about what goes on at work in your social media. It doesn't take many 6 figure settlements to "fix the culture" at a place, and if fixing it means removing a highup officer, that happens too (http://www.bizjournals.com/washington/news/2012/11/13/lockhe...)

Honestly, I'd think more start-ups would start to develop more serious twitter and social media policies. I don't know of one that didn't have some disgruntled former employees, just due to the demands and the personal nature of start-ups.

If a crime in fact occurred, a contract to cover it up is not valid.

>>>It is like a wtf limitation of freedom to speech

"Congress shall make no law abridging the freedom of speech" doesn't mean that you can't pay me to be quiet, if you and I both agree to it.

It's been legal since two individuals were allowed to enter a contract with one another. Furthermore it doesn't become illegal for someone to make disparaging comments or even breach an NDA. You don't go to jail for that. There are however consequences to those statements which were mutually agreed upon in a signed contract.

Why would it be illegal? You are not obligated to accept it. It is quite often a condition on out of court settlements and I can confirm that it is very much a thing in the UK.

She was allegedly paid to sign the agreement. Gag orders can be a normal part of out-of-court settlements - the person allegedly harmed receives financial compensation, and the entity that allegedly did the harming brings the issue to a close.

Certainly seem to exist in the UK, e.g.

http://www.hrlaw.co.uk/site/infobank/infobankarticle/silence... http://www.publications.parliament.uk/pa/cm201314/cmselect/c...

Although they're more likely to be colloquially called "gagging orders".

Non-disclosures are common in the EU and will usually include non-disparagement clauses. If you break it, you have to pay back the money, that's all.

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