EXCLUSIVE: The chair of the UK’s Creative Industries Independent Standards Authority (CIISA) has called on Channel 4 to launch an independent investigation into its use of confidentiality clauses in settlement agreements.
Baroness Kennedy, who also serves as a lawmaker in the House of Lords, said Channel 4 should engage an external attorney to examine the agreements signed by former staffers who left the public service broadcaster amid an employment dispute. Channel 4 said it welcomed the debate, but stopped short of committing to a review.
Kennedy, a distinguished human rights lawyer, is now a powerful voice in the creative industries through her work at CIISA, an independent body through which TV and film workers will soon be able to report wrongdoing.
Kennedy’s intervention follows a Deadline analysis of 61 Channel 4 settlement deals signed by aggrieved ex-employees between 2017 and 2021. Channel 4 paid out £5M ($6.7M) to these individuals to prevent complaints escalating, but in doing so, stipulated that they do not discuss matters relating to the company.
Transparency campaigners said Channel 4’s confidentiality and non-disparagement clauses are tantamount to non-disclosure agreements. Channel 4 defended the deals, arguing that they are not NDAs and do not prevent people from reporting serious wrongdoing. Despite this, Channel 4 made changes to its settlement agreements in 2022, stripping back confidentiality clauses.
Kennedy told Deadline that an independent person should “cast their eyes” over the agreements, suggesting that Channel 4 should be open to such a process if “what they’re saying is right.”
Her concern is that Channel 4 has used so-called gagging clauses in cases that fall short of serious wrongdoing. She said other forms of misconduct, such as sexual harassment or discrimination, may not be criminal in nature, but “can make someone’s life a misery at work,” and people should be free to speak out on them.
Kennedy added: “There should be much more openness and transparency about excessive use of NDAs and when you see high numbers [of settlement agreements], it almost invariably means they’re not always being used in the most appropriate circumstances.”
Labour MP Louise Haigh, who has spoken out against NDAs in the media industry, said Channel 4’s use of confidentiality clauses was “desperately disappointing.” She told Deadline: “This tool must be removed entirely from employers; NDAs and anything that resembles them must be banned in cases of harassment or discrimination.”
Getting Legal Advice
Kienda Hoji, a music industry lawyer who sits on the CIISA board, said media organizations should be able to use confidentiality clauses when they are requested by departing employees, but they should never amount to blanket agreements that leave people “gagged for life.”
“It’s about the weight of the burden that’s imposed within the contract. If somebody’s barred for life from speaking about something which really affected them incredibly deeply … then that’s a real problem,” he said.
Hoji added that people should get proper legal advice before signing contracts that bind them to some form of confidentiality. Kennedy, who advised Zelda Perkins when she spoke out against her former boss Harvey Weinstein, has been working to address NDAs from her seat in the House of Lords. She tabled an amendment to the Employment Rights Bill, which would entitle employees to access legal advice should they be asked to sign a settlement deal with confidentiality clauses.
A Channel 4 spokesperson said: “Channel 4 is taking a leading role in challenging unacceptable behaviour in our industry and we welcome this debate. Channel 4 does not use non-disclosure agreements with exiting staff. We are very clear that wrongdoing should be called out and investigated.
“Our approach to agreements has evolved over recent years – and will continue to in future – and for the last few years our agreements no longer contain the broad confidentiality type provision. Nowadays, the only confidentiality is around any financial amounts that would be commercially confidential or when departing employee asks for confidentiality around the circumstances of their departure.
“Channel 4 was an early supporter of CIISA and we have committed our support to their industry-wide standards. We will continue to engage with Baroness Kennedy and other lawmakers to reassure them of our position.”
Although Channel 4 has watered down confidentiality clauses in recent years, it continues to stand by non-disparagement orders. The company’s position is that these clauses protect people at all levels and are sometimes requested by departing employees who do not wish to be disparaged by former colleagues.
Channel 4’s commitment to the clauses in settlement agreements puts it out of step with other industry players. The BBC removed so-called gagging orders from contracts in 2013, including non-disparagement clauses and those that stop individuals from discussing a settlement agreement or the circumstances of their departure.
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