There’s now a strange silence over Australia’s decaying commercial media landscape on the use of non-disclosure agreements to protect media executives — including some of the most powerful men in Australian journalism — from allegations of sexual harassment and bullying.
The Australian went hard early on claims that a number of non-disclosure agreements (NDAs) had been signed by female staff at Nine Entertainment over allegations of misconduct by former head of news and current affairs Darren Wick — claims Nine has dodged and weaved to evade answering. But News Corp’s dogged journalists appear to have dropped the issue since then.
News Corp is well known for refusing to cover itself — the target of a rightly snarky tirade in the Financial Review today — which prompts the question of whether its hacks have been told to stay schtum on the use of NDAs lest their use by News Corp to protect its male executives, or former executives, come to light.
The use of non-disclosure agreements isn’t merely to cover up misconduct, of course — their use is a legitimate practice in the corporate world, including the media. But the abuse of NDAs as a mechanism to effectively gag victims of sexual harassment or bullying by senior executives is widespread enough to prompt the Victorian government to undertake in 2022 to ban their use in sexual harassment cases. The United States Congress and the Biden administration passed the Speak Out Act in 2022 to ban the judicial enforceability of NDAs in sexual harassment and sexual assault cases, and a ban on such use of NDAs has also been proposed by a parliamentary committee in the UK. Some companies have voluntarily banned the use of NDAs in sexual harassment cases. However, such bans are also opposed by some victims of sexual harassment.
Crikey asked every major Australian media company — Nine Entertainment, Seven, Guardian Australia, Network Ten, ARN, SCA and News Corp — as well as the ABC and SBS, about their use of NDAs in relation to workplace misconduct, how many they were party to over the past five years, and whether they saw a tension between the use of NDAs and the role of journalism and newsrooms.
The lack of replies, even after repeated promptings, was remarkable.
Nine, to give it credit, replied — albeit with more weasel words. A spokesperson for Nine said it was “not Nine policy to require employees to sign NDAs where they have made complaints about workplace conduct”, adding “as is common in Australian workplaces, some employees will agree [to] confidentiality and mutual non-disparagement clauses as part of their exit arrangements”.
No other commercial media company answered our questions. We think it’s fair to assume that that means they have used NDAs in the resolution of sexual harassment, bullying and assault cases — though readers will make up their own minds.
The ABC refused to comment and SBS didn’t reply. We think this also means the national broadcasters have used NDAs in a similar manner — and perhaps spent taxpayer dollars doing so. Taxpayers are, we suggest, entitled to know if the broadcasters are spending money in pursuit of NDAs, and possibly their enforcement. Crikey knows of at least one case where a departing national broadcaster journalist was asked to sign an NDA, despite their departure being part of a redundancy round and unrelated to any claims of misconduct.
As for our part, full disclosure: we haven’t used them. Will Hayward, CEO of Private Media, which publishes Crikey, says the company is “not party to any workplace conduct NDAs over the last five years”, and the company was “not aware of any NDAs with former staff at any point in our history”.
To repeat a point made previously, it is impossible to be a credible media company that purports to hold the powerful to account and to also gag staff who have alleged harassment or bullying in order to protect powerful executives. Our biggest media companies should follow Telstra’s lead and ban their misuse. But judging by their non-response, they don’t even think there’s a problem.
Should media companies be using NDAs to silence employees in the event of workplace misconduct? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
