macleginnAuthor of "Careless People" banned from saying anything negative about Meta
https://www.thetimes.com/uk/technology-uk/article/sarah-wynn-williams-careless-people-meta-nrffdfpmf
My understanding is that as part of a severance package she received in 2017 she agreed to some kind of "non-disparagement" clause. She then went on to write a book disparaging the company. The arbitrator didn't rule on the disparagement itself or if anything was true or false. Only ruled that she had to abide by the contract she signed.
It sounds like an interesting book, and I'll add it to the list. But it also sounds like she agreed to this in exchange for a lump-sum severance payment, and then broke the contract anyway. I'm not sure if this is really that principled of a thing. She sought-out and accepted a lot of money for this agreement.
It should not be legal to enforce this kind of thing 9 years after a person leaves your company. I get that it currently is legal, but have some principles. Just because this is legal doesn't mean it isn't morally reprehensible, and its legality should be challenged.
So allowing someone to sign themselves into slavery should be "legal" because it's "impinging on someone's right to enter contracts"? I get that some people balk at "morally reprehensible" as some sort of slippery slope, but c'mon we as individuals have to function somewhat coherently. As a social species reliant on some form of social cohesion (how much oil did you refine this morning?) we have to have some guidelines.
Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch. The situation up for debate is: Should you be able to voluntarily accept money in exchange for promising not to say bad things about someone or some company? I don't see a good faith interpretation of that as "signing yourself into slavery".
> Fwiw, I think making such non-disparagement clauses illegal is an interesting idea, and could be a net positive. That said, I think the slavery comparison is a stretch.
Arguably, its more like non-compete agreements but with the added fact that state enforcement of the agreements is in tension with freedom of speech.
But, you know, lots of jurisdictions sharply restrict enforceability of non-competes, too.
Nobody was trying to equate non-disparagement clauses with slavery. The relevance of slavery here is as an example of the kind of contract terms that everyone should be able to agree are rightly invalid and unenforceable. Any argument in favor of contract enforceability that would apply to a slavery contract just as easily as it applies to a non-disparagement contract is a bad argument, or at least woefully incomplete. Bringing up slavery serves as a necessary reminder that the details and nuance of the contract terms and their effects need to be discussed and argued, and that an unqualified "contracts should be valid" position is untenable and oversimplified.
The general principle is that you shouldn't be able to "sign away" something that's a constitutional or human right. Like the right to freely speak, the right to practice a religion, the right to be paid for work, and so on. Imagine if the severance contract specified that she had to convert to Islam in order to get her severance, or that she had to sacrifice a child. No court in the country would consider those clauses conscionable. Yet, somehow companies are allowed to gag your free speech as a condition in a contract? It makes no sense why this is allowed.
This is legalized buying people off, yes these contracts ought to be illegal and the comparison to slavery (a worse, but same category of morally reprehensible power dynamic) is completely valid
We already recognize that contracts that violate one party's fundamental human rights cannot be enforced because they "shock the conscience", in terms that American jurists use. This article does not include the terms of the non-disparagement clause, or the other terms and payments, so we can't really say whether the clause is vulnerable to being ruled unenforceable by courts. But it's wrong to say that nobody can enter into contracts that constrain their speech. People do that all the time.
For arbitrary contracts I would agree, but I think increasing the limitations in severance agreements specifically makes sense. There are already certain requirements (at least in California) for severance agreements and I think limiting the duration of non-disparagement clauses to 1-2 years would be a positive change.
IMO, "freedom to enter into contracts" isn't actual freedom, for the same reason that the MIT license isn't more free than the GPL despite it allowing more behaviors: in both cases, it's basically "permission to have your freedom taken away".
The government enforces contracts, so it gets to choose which contracts it enforces. Without a functioning judicial system (and a law enforcement system to enforce its verdicts), a contract is a piece of paper.
Plenty of contracts benefit both parties but are bad for society as a whole, and if the government pre-signals which sorts of those contracts it will refuse to enforce, this is good for society.
Why would it not be legal to enforce a contract after 9 years? If she didn't want it enforced after a duration, she could have negotiated for that, or just not signed it.
I don't see how it's principled to legally swear to not do something, then turn around and do it anyways. She's an adult, she has agency, and she chose to enter that contract.
It's also not like we're talking about a legal whistleblower here. That act DOES (and should) have a lot of legal protections. This is someone writing a book that they personally profit from.
I basically agree but as a civil instrument, a contract is not a law. The only consequence of violating a contract should be having to pay back whatever damages were caused. Not prohibitions on behavior or other freedoms. Enforced by whom?
Corporations will violate contracts all the time as a cost of business if the cost of the violation is less than the benefit gained.
There would have been a power imbalance at the point of signing. I can well imagine that the implications of that particular clause weren't apparent at the time.
As a society (more so here in the UK than in the US, I'll grant) we have laws governing what one party may demand of the other. They don't prevent a genuine meeting of the minds, because enforcement of a contract will only be an issue if at least one party doesn't follow through. But they do limit the ability of the company to impose sanctions beyond a point.
One limitation in the UK is that penalty clauses that are "private fines", like this one, must be based on the actual damage caused.
In this case, as in the non-compete case, I would say that if a company wants to continue to influence what someone does, they should continue to pay them.
There are all sorts of contracts that are deemed non-enforceable. Our government should pass a law that bans non-disparagement clauses.
One of the most pressing problems of our time is that these large corporations, on balance, have too much power compared to the electorate.
It should not be legal to enforce full stop. If you don't want to be disparaged, make your conduct worthy of not being disparaged. When you're being lied about, sue for defamation; "non-disparagement clauses" are redundant at best, an attack on free speech at worst.