Every journalist has been there: you’re at a dinner party, you meet someone for the first time, they ask you what you do and when you tell them, it’s all “Ha ha ha, a reporter? I’d better watch what I say. This is all off the record!”
The secrets of Derek from accounts will remain secret, of course, unless perhaps, he has made the mistake of having a tête-à-tête with Isabel Oakeshott. If what he has told her is newsworthy, he may well be toast.
Matt Hancock, the former health secretary, must have thought he was safe from such a fate – after all, Oakeshott was working with him on his book, Pandemic Diaries: The Inside Story of Britain’s Battle Against Covid, under the protection of a non-disclosure agreement. He might perhaps have pondered why she was working on the book for no fee, or “pro bono”, as she put it. As it becomes increasingly clear that the bono it was pro was definitely not Hancock’s, he might recall the saying that, when the product is free, you’re the product.
But what about the NDA? Why hasn’t this silenced Oakeshott and the Telegraph as effectively as was hoped? NDAs are contractual agreements, and are enforcible as such. Very often they concern trade secrets and confidential matters that the signatory will be party to in their work. The NDA is a written contractual promise that those secrets will not be revealed, even after the signatory has left their employment.
However, their use can be limited: for example it is unlawful for an employer to use an NDA to prevent the reporting of a crime, or to stand in the way of giving evidence to a court or tribunal. Oakeshott has argued that the reason she has revealed the content of the WhatsApp messages is that it was in the national interest to do so, given what they reveal about what was happening at the heart of government during the pandemic.
NDAs have come into disrepute in recent years, having been used by the rich and powerful to cloak their misdeeds when mistreated employees have left their jobs, with payoffs being made only if the employee will sign an NDA. They are often quite effective in doing this – Topshop tycoon Philip Green had been able to use NDAs, and injunctions on newspapers, to prevent his name being revealed in connection with harassment allegations by former staff. Eventually, Peter Hain, using parliamentary privilege to name Green, bypassed the NDAs that might otherwise have kept Green’s name out of the media.
How then, have Oakeshott and the Telegraph got away with it? Well, we don’t yet know that they have. It is still open to Hancock to go to court to seek enforcement of the NDA, and even damages for the apparent breach of the NDA by Oakeshott. He could also seek an injunction preventing further revelations.
Oakeshott’s critics might point out that the handling of the pandemic is already the subject of a public inquiry and that therefore her revelation pre-empts the inquiry properly examining this matter. She claims that waiting for the inquiry to get to this will take too long, and journalists knowing that news is a perishable commodity might acknowledge there is some truth in that.
Legal questions aside, has Oakeshott acted unethically in revealing this information when she had given written assurances that she would not?
The Editors’ Code of Practice says that journalists have a moral obligation to protect confidential sources of information. However, this tends to be applied to people who fear being identified in relation to a story – whistleblowers for example – and not government ministers who are writing a memoir of their time in office.
This then asks the wider question of whether you can ever trust a journalist when they promise to keep something secret. We’re back at that dinner party, and it turns out that Derek from accounts is more interesting than you had imagined, and revealed something that is front-page news. In that situation you’re very reliant on the moral compass of the journalists you talk to. A good one will use Derek’s information as a lead and establish the facts elsewhere, hopefully protecting Derek from exposure. A lazier one might burn Derek and bask in the byline.
It’s not dissimilar to what people are discovering about WhatsApp – end-to-end encryption sounds wonderfully secure, but it is only as trustworthy as the person receiving your message. Whether you can rely on a journalist to keep your secrets depends on how far you can trust them. Is the story you’ve given them big enough for them to burn you as a contact?
In making that judgment you might bear in mind the words of the US civil war general William Tecumseh Sherman, whose dim view of the reporters in his camp was this: “All journalists are spies, you could shoot them all but you’d have news from hell by breakfast.”
David Banks is a journalist and media law consultant
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