A number of mediapersons in India receieved an NDA – a non disclosure agreement – from a tech company yesterday morning (we are not naming it, because well, firstly it was a confidential document, and secondly, that this is not really about the company but about a due process). For those in the non-tech world, the NDA is generally a legal document in which companies send to the media when they entrust them with a product before its official launch. By signing the document, the mediaperson undertakes not to disclose anything about the product before given the official go-ahead by the company.
It speaks a lot of the faith that many have in the company and that indeed how routine such documents are in the life of the tech media that some signed it and sent it back to the company without casting too close a glance at it.
By the afternoon, however, the scene had changed rather radically, with a few people pointing out two rather unusual paragraphs referring to clauses in the NDA:
- That any violation of it would be penalised by a fine of a hundred thousand US Dollars
- That the NDA would cover not a specific product or service, but would stretch for a period of five years
Now, in itself the first clause was not that much of a surprise – we have had companies add a financial penalty to their NDAs (a phone company had warned us of a ten thousand Dollar fine for violating the NDA three years ago). The second one was, however, a bit out of the way. We have signed long term NDAs in the past (one was for seven years) but these had been generally phased out as companies realized that the personnel themselves involved in the signing process would have switched jobs and designations in that period. Indeed, in the past four-five years, the longest period NDA we had signed was for three months.
However, to many people, these clauses seem to verge on some sort of legal desecration, for the social networks literally went blue for a while, with the company copping a lot of flak for having the temerity to introduce such “ridiculous” clauses in an NDA. Many refused to sign it and some others even suggested a campaign against the company for daring to put such clauses in the document.
Was it such a big deal? Well, it really depends on whom one talks to. Some of those in the tech media felt that the document advertised the contempt the company had for the media. “How can they impose a five year agreement,” seemed to be the concern of many, although some were concerned about the amount of money involved too. On the communications and public relations side, however, the broad consensus was the company had at best been naive rather than vicious.
“We have had a number of people breaking embargoes for the sake of getting some extra page views. Something needed to be done about it. But the five-year thing is silly – both signatories would have moved somewhere else in that period of time,” a PR executive told us. “What were they trying to do? Save paper from frequent embargo sign-ups?”
“The five year term was totally out of place,” a colleague of ours remarked, “One year, I could understand but this is way too long, and when it is combined with the 1,00,000 USD figure, it starts looking very defensive and suspicious.” A point on which most media persons seemed to agree was that the whole affair would not have acquired such large dimensions if the company had just given them a hint of what lay inside the document. “A lot of us tend to sign these documents blindly, as we know the company very well,” a friend said. “So when you suddenly see such changes, it almost appears like a breach of trust. You cannot blame people for getting angry – it is like ‘I trust you to sign a document without a glance, and THIS is what you try to do?!‘”
There are some who feel that things spiralled out of control. “At the end of the day, it was a confidential document,” a senior corp comm from a tech company told us. “And the company was known well enough to
most media persons. If they had a problem with it, would it not have simply made more sense to drop a mail or call to the relevant person and ask for a clarification? Even if people wished to discuss it, should it not have been kept within the community instead of pouring abuse on Facebook and Twitter? It was hardly the Panama Papers that
the public needed to be kept in the know for its greater good!”
Interestingly, many media persons actually agreed that something had to be done to curb embargo violations. “It has become a piece of paper. That’s all,” a senior editor told us. “People break it all the time and nothing happens. So more people break it. The whole race to be first has killed the sanctitiy of a signature.”
“It is pretty organised,” a PR executive told us. “Inevitably someone breaks the embargo a few hours before an event. They know the company will be too busy with the event itself to react at that stage. By the time the event is over, no one wants to kick up a fuss. Some people even have their own tricks to break the embargo – one of these is to pretend to be leaving an event early and asking for the press kit. And then promptly writing a story based on what’s inside the press kit, claiming a press release is a public document!”
Having had our share of embargo breaking allegations (most recently, many felt we had broken an embargo when we wrote a totally fictional hands on of a device that gave out no information that was not already in the public domain), we can attest to the concern the companies have about embargo violations. Revealing information before an event almost takes the steam out of it, and pretty much makes it irrelevant for many. That said, we are not sure putting down stiff penalties or having long-term agreements are the way out. We have signed NDAs with financial penalties before – we have seen them violated, and nothing at all happened to the offender. “Someone else breaks an embargo and gets page views. We remain honest and get relegated to second spot. It is unfair, isn’t it?” a blogger confided. “And the companies do f*** all about embargo violations, especially if it is from a ‘big brand’ or ‘key influencer’ or if it is positive – everyone just wants positive coverage, whether it is the companies or the PRs. Many people tell us ‘break the embargo slightly early and do a very positive story. Koi kucch nahin karega (no one will do anything).’ I am so tempted to do so sometimes!”
All of which makes the whole imbroglio seem like a classic case of paranoia. The company was worried about ‘leaks’ and thought a tough sounding NDA would work. The media felt that the company was trying to pull a fast one over it. And in the end, things just snowballed. Should it have gone public the way it did? Opinions are divided over the issue, but one thing that did emerge from it all was just how fragile the relationship between some sections of the media and the tech companies is. Which is a colossal pity, as this can result in miscommunication and misunderstanding, neither of which benefits the target audience of both parties – the consumer.
I remember handing out a product to a senior journalist in 1997 almost a month before release. The company involved had asked me for a written assurance from him that he would not carry a story around it before a certain date. Timidly (he was a senior journalist and I was just in my first job), I asked him if he could fax (oh aye, e-mail had not quite caught on at that time) a signed assurance to that effect. His reply has always stayed with me:
“Aap to meri zabaan pe yakeen nahin hai, dastkhat pe hai? To mat dijiye device!”
(“You do not trust my word, but trust my signature? Then don’t give me the device.”)
I said no more, even though the client got upset and questioned the legality of my parentage. The journalist duly carried the story as he had promised he would. And the client was graceful enough to concede that “we might have not quite understood the guy.”
A lesson there, I think.
We live in competitive times. Times in which relationships get strained. And sometimes need to be affirmed on paper.
But that does not make them any less imporant. The key word in public relations or media relations is not ‘public‘. It is not ‘media‘ either.
It is ‘relations.’