Do I need a Non-Disclosure Agreement (NDA), and is it enforceable?

These days, NDAs are becoming increasingly commonplace. Many times, people will be asked to sign an NDA before going into a job interview, or before discussing a new contract with a supplier or a customer. In this post, we’re going to look at whether you really need to have an NDA, and also, under what circumstances an NDA is actually enforceable.

Even without signing an NDA, the law recognizes the concept that some types of information are considered to be confidential and may give protection to the information owner. However, it’s much more useful to have a written agreement which sets out exactly what’s covered and what isn’t. A confidentiality agreement can also set out the permitted use of the information and often a time limit for how long these restrictions will apply. These are matters which are generally not otherwise be covered by the general background law.

How easy it is to actually enforce an NDA depends on a few things, chief among them how the document is worded, and of course, whether there has been an actual breach of its terms. It’s important to get your NDA drafted very carefully, because if there are any errors or loopholes in the agreement, the restrictions placed on the use of the information may effectively be worthless.

It’s not a good idea to use an NDA that hasn’t been checked by a solicitor or to use a generic NDA, or an NDA that was created for a different purpose. Even if you get a bespoke NDA drafted specifically for your company’s needs, you still need to bear in mind that NDA’s are notoriously difficult to enforce in the courts, usually because of the problems posed by gathering enough evidence together to prove that its terms have been breached and that a loss was caused as a result. For this reason, although using an NDA can be helpful, it shouldn’t be relied on unquestioningly.