KOD Lyons Commentary on Social Democrats’ Use of NDAs and Freedom of Expression – The Times

In recent discussions surrounding the use of non-disclosure agreements (NDAs) by the Social Democrats in Ireland, concerns have been raised about the potential implications these legal tools may have on freedom of expression.

KOD Lyons, a law firm based in Ireland and renowned for its expertise in legal and human rights issues, has offered valuable commentary on a recent investigative report by journalist Claire Scott of The Times.

This investigation sheds light on the use of non-disclosure agreements (NDAs) within political organisations, with a specific focus on the Social Democrats. KOD Lyons’ analysis delves into the broader implications of these practices, critically assessing how the application of NDAs by the Social Democrats may affect transparency and the freedom of expression within the party.

This expert insight is part of the firm’s ongoing commitment to explore the intersection of legal frameworks and human rights in political contexts.

What is a Non-Disclosure Agreement (NDA)?

A Non-Disclosure Agreement (NDA), also known as a confidentiality agreement, is a legally binding contract that establishes a confidential relationship between two or more parties. The purpose of an NDA is to protect sensitive information from being disclosed to unauthorised parties.

In the context of a political party, NDAs may be used to safeguard political strategies, financial details, or other proprietary information that could be detrimental to the party if leaked. Typically, NDAs specify what information is considered confidential, the scope of the confidentiality obligation, and the duration of the agreement.

Kod Lyons Provides a Legal Perspective on NDAs

Stephen Kirwan, a partner at KOD Lyons, reviewed the NDAs reportedly used by the Social Democrats and found them notably vague and broad.

According to Kirwan, the content of these NDAs seems designed not merely to protect sensitive information but to significantly restrict party members’ ability to speak openly about party matters, he said they read as if they were intended to have a “chilling effect” over what members feel they can and cannot say publicly.

“I think they’ve got the balance wrong here. There is a level of the agreement which is about ensuring compliance with GDPR and the protection of constituents, which is good and reasonable, but then it doesn’t set out a clear purpose for the NDA or offer detail about the various classes of documents it expects to be treated as confidential.”

 

“It doesn’t define what would be considered a breach of this contract which could result in a situation where the signee won’t be able to discuss anything to do with the party at all, given how broadly it is worded.”

The Chilling Effect on Freedom of Expression

Kirwan’s critique centres on the lack of clarity within the NDAs about what constitutes confidential information and what the consequences of a breach might be. This ambiguity could lead to self-censorship among party members, fearing repercussions for discussing party-related topics, thereby infringing on their right to freedom of expression.

“It reads more like a document designed to have a chilling effect over what members can and cannot say given there isn’t any specificity and it’s worryingly scant. It’s probably to prevent members from going on a solo run.”

 

“I’m not saying it’s an unlawful agreement but there could be issues arising from it. One thing the signee would have to think about is how this may infringe on their freedom of association and freedom of expression. I think that it would really hamper members of the party from speaking publicly.”

Comparison with Other Political Parties

It is noteworthy that other major political parties in Ireland, such as Fianna Fail, Fine Gael, and the Green Party, do not require such NDAs from their members, though confidentiality is expected in executive meetings. This raises questions about the necessity and proportionality of the Social Democrats’ approach to confidentiality and transparency.

Review of NDAs by Social Democrats

Following significant revelations reported by the media, Holly Cairns, the leader of the Social Democrats, has acknowledged that the party’s use of non-disclosure agreements (NDAs) is currently under scrutiny. In response to these investigative findings, the party has initiated a comprehensive review to reassess the application and scope of NDAs within its operations.

“This review is ongoing and is expected to conclude later this summer,” stated the party in a recent announcement. This step reflects the party’s commitment to addressing concerns and potentially reforming how confidentiality agreements are utilised, ensuring they align more closely with the principles of transparency and open governance.

Recommendations for Moving Forward

KOD Lyons advises members of the Social Democrats and similar organisations to be cautious about signing such broad NDAs. Parties should aim to balance the legitimate need to protect sensitive information with the rights of party members to discuss and critique party policies openly.

NDAs and Freedom of Expression

The ongoing review of the Social Democrats’ use of NDAs, as stated by party leader Holly Cairns, is a step in the right direction. However, it is imperative that this review leads to a more balanced and clearly defined use of NDAs that respects members’ rights to freedom of expression. KOD Lyons remains committed to highlighting these issues and advocating for the rights of individuals within political organisations.

Stephen Kirwan, Partner

Stephen Kirwan, a seasoned solicitor at KOD Lyons, specialises in Immigration and Public Interest law. He began his career after graduating with a Bachelor of Laws (LLB) from Trinity College Dublin in 2012, joining KOD Lyons a year later. Stephen has since dedicated himself to advocating for human rights and providing legal services that significantly impact public interest issues.

Stephen also serves as the Vice Chair of the Law Society Human Rights Committee, his contributions to public interest law through strategic litigation and education illustrate his commitment to enhancing justice and equality. His work not only addresses immediate legal challenges but also aims to effect systemic change in the legal landscape.

KOD Lyons

At KOD Lyons, we actively engage with contemporary legal debates, providing expert commentary and in-depth insights. Explore our past articles and media features, such as:

• Parents Of Children With Special Needs Taking Over 40 Cases Against Schools For Alleged Harm
• Just one prosecution in four years for failing to produce passport on arrival in Ireland
• NCSE trying to ‘bounce’ legal obligations to children with disabilities onto principals

For legal consultations, media inquiries, or any other information, please contact us.