NDAs and Terms of Service

As the world changes around us, one thing that’s both the same as always and yet different is contracts. We still have them and in practical terms, they aren’t always worth the paper they’re printed on.

And you either signed a half-dozen today without realizing it, or … didn’t. Welcome to the world of Pervasive NDAs and Terms of Service.

Earlier this week, an old friend was asked to sign a non-disclosure agreement as he visited a company he was writing about. Forgetting how funny it is to ask a member of the press to not disclose the things he learns when he’s there to learn and write about you, this idea is a big problem.

So listen: journalism has changed, but it hasn’t changed that much. If you invite a journalist to cover you, the status quo is that they are going to reveal what they learn. You can go “off the record”, but literally demanding that a journalist not do his job from the moment he arrives—and putting that in contractual form—is an amazing waste of everyone’s time.

Galen Gruman is a big boy. He can take care of himself, and he did. But Galen’s adventure made me think about what a problem NDAs and Terms of Service Agreements have become.

NDAs and Terms of Service

I wouldn’t collapse NDAs and Terms of Service together, but we now all see both pretty much every day. Skeptical? Go through your email and I’ll bet you’ll find at least one with an NDA at the bottom. Every law firm tries it. Many other businesses do, too. You know that wording about how what you’re being sent is confidential? It’s a non-disclosure agreement.

Of course, unless I’m missing something, those NDAs are completely unenforceable; you didn’t agree to such terms and they weren’t presented to you until after you’d already opened the emails they append. I’m not an attorney, but I do understand that much about the law.

Terms of Service agreements are trickier. You’ve probably agreed to one this week, if not today, just by clicking a button on a website. We’ve been clicking like this for years, and the last time I checked some were considered legally binding.

As I said above the NDAs and Terms of Service issue is something we all deal with, every day.

And from here, I don’t quite know where to go with this piece. OK, so I do.

It’s crazy that this is a thing. It’s crazy that we need to think about it professionally, let alone personally. But we do, and while we aren’t set up to help you so much on the personal side of things, you can reach me here and we can talk about managing NDAs and Terms of Service professionally.

I’m just glad Galen Gruman’s been a journalist long enough that he doesn’t need help.

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