I really dislike non-disclosure agreements, but NDAs are a fact of life in the IT industry. Even folks like me that actively avoid NDAs sometimes have to sign the paperwork to gain access to people or information, and employers regularly require such an agreement as a condition of employment. I suspect most folks try to respect and uphold the agreements they do sign, but this doesn’t stop slip-ups. So let me take a few minutes of your time to pass along my top five tips to avoid violating NDAs!
1 – Avoid signing NDAs
The best way to avoid breaking an NDA is simply not to agree to one in the first place. Asking for a non-disclosure agreement is part of standard practice in business, but it’s not always necessary. Politely ask if the NDA is really necessary and suggest that really secret information shouldn’t be shared in the first place. I don’t want to know the long-term product plans of every IT supplier since this is the very topic I love to speculate and write about. Knowing the roadmap ruins the fun of guessing, and companies don’t always stay on course anyway!
Trap Tip! Ask your corporate counsel (or your boss) about any NDAs your company may have in place with its partners, suppliers and customers. You may find that you are covered by an NDA that you never heard about!
2 – Ask for embargoes instead
Many companies will allow you to forego the NDA and still give you the heads-up on near-future releases under embargo. If you’re proven your responsibility, you can often get a sneak peek, prepare yourself for the release, and get your ideas straight on day one without having an NDA in place. I much prefer embargoes since they’re easy to keep straight in my head – “don’t say anything about the product XYZ until next Monday, but everything is wide open then!” But make sure you’re careful about exactly when you can talk, including the time and timezone of the release!
3 – Limit the scope
If you’re dealing with a larger company, ask if you can limit the scope of the NDA to just one product or technology area. This it unusual and unlikely to fly, but at least shows that you take such agreements very seriously. Assuming this is nixed, limit what you hear. Ask in writing to keep your briefings confined to a certain area and stop speakers who want to say too much. None of this affords much legal protection, but it helps you to keep your head straight and avoid temptation to spill the beans.
4 – Follow the leader
If you’re under NDA and want to talk about something private that was shared with you, wait until an official source announces it first. One great aspect of the social web is the rapid spread of information from official blogs. If the Microsoft product team talks about something on their official TechNet blog, I assume it’s fair game. The same goes for corporate documentation posted at TechNet. Certainly employees can leak information and violate NDAs too, but information posted on corporate web sites, even in obscure corners, can’t really be considered confidential. Hold off on sharing information leaked by unofficial sources, though. You don’t want to be a trailblazer when an NDA is in place!
5 – Ask permission
When in doubt, it never hurts to ask. If you believe you should be able to write or speak about information shared under NDA, send an email to corporate PR or media/analyst relations specifying what you intend to cover. They will review it and let you know what you can and can not say. You can also raise your hand during presentations and inquire about the confidentiality of the information being covered. Don’t rely on “confidential” tags on slides and handouts, though – they’re often placed inappropriately or forgotten.
The NDA Changes The Game
NDAs are necessary but no fun. They can land you in hot water, even when you’re not trying to reveal information. And they put you in a subservient position relative to the companies you think, write, and speak about. Who wants to ask permission and wade through corporate bureaucracy just to blog? This is why the best way to avoid trouble is to avoid the NDA in the first place. But chances are you will be covered by such agreements at some point, so you had better figure out a strategy to live with them.
Note: Remember that each agreement and jurisdiction is different. I am not a lawyer and am not trying to give legal advice. I’m simply trying to help my friends and readers keep out of trouble!
Great article. It’s hard to insure that you don’t cross the line, and these tips will defintely help.
One key to your point 4 is that a well written NDA clearly says if the information has become public some other way the NDA is no longer in force. I’ve been know to cut and paste (sometimes literally w/Rubber Cement and everything) that clause in before signing.
Great point, Howard! Every NDA is different, and some might still land you in hot water if you talk about info that is now public. That’s why I’m not a lawyer!
I do agree about the limitations placed on persons by NDAs.
However, when I put on my CTO hat, I find that access, and early access for that matter to technologies and technology trends, help me in making decisions that may lead to a competitive advantage for my business.