To sign an NDA, or not to sign an NDA, that is the question: Journalist Isabel Oakeshott leaks 100,000 of Matt Hancock’s private WhatsApp messages to the press
Alice Gregory – 13 March 2023
Three years on from the start of the pandemic, and COVID is still making its way into the headlines. At the end of February, journalist Isabel Oakeshott (an anti-lockdown activist whose name you might also recall from “Piggate” a few years back…) handed over 100,000 WhatsApp messages from ex-health secretary Matt Hancock to the Telegraph. The messages, Oakeshott argued, were released on behalf of the public interest, and had been obtained while working with the former health secretary on his new book. Initially, Oakeshott claimed that she had chosen to leak the messages despite signing an NDA, only to later rephrase it as a standard agreement. So, what’s really going on?
Whether or not a contract was signed makes all the difference when it comes to any potential legal consequences. An NDA, or non-disclosure agreement, is a legally binding contract that protects shared information, and restricts the use and disclosure of that information. There are two types of NDAs: the first is one-way, when only one party is sharing information; and the other is mutual, when both parties are exchanging information. In cases like this, as a general rule, the participants would have signed a one-way NDA, which would have set out all the sensitive information that would need to be kept confidential. An agreed monetary value can also be added to the agreement, which would detail the damages to be paid in the event of a breach, and NDAs are often limited to around five years.
We don’t know yet whether Hancock will seek legal action – or if he has evidence of a signed agreement to pursue this – but in most cases you can expect to face a lawsuit when breaching a contract. In theory, Oakeshott’s defence of acting in the national interest could mean she is protected by the Public Interest Disclosure Act 1998. This policy typically protects whistleblowers in the workplace, and details any ‘qualifying disclosures’ that can protect you from legal action in the case of an NDA breach. Essentially, if a criminal offence, failure to comply with legal obligation, or miscarriage of justice has happened, is happening, or is likely to occur, then it can be considered a qualifying disclosure. The same goes to any existing or potential threats to one’s health and safety or the environment.