Leiden University: Confidentiality clauses with penalty clauses should not be invoked when misconduct is reported

Confidentiality clauses that contain penalty clauses in television production contracts are common, permissible and useful, but can never be invoked against disclosing misconduct, such as unacceptable behaviour. This is claimed by Dirk Visser, Charlotte Vrendenbarg and Richard Trouborst in their article ‘Maak er geen geheim van – Over geheimhoudingsbepalingen in televisieproductiecontracten en het melden van misstanden’ (Make no secret of it – on confidentiality clauses in television production contracts and reporting misconduct), which appeared this week in the Nederlands Juristenblad.

In their article, Visser, Vrendenbarg and Trouborst discuss the importance of confidentiality surrounding television programmes. Producers have an interest in keeping certain information about a programme, such as the way a game is played on a TV show or the storyline of a series, secret until the time it is broadcast. For this reason, contracts with employees, contestants and audiences present during filming almost always include a confidentiality clause, often in combination with a penalty clause.

In practice, confidentiality clauses are worded broadly. As a result, employees and candidates of a television programme might believe that they are not allowed to disclose information related to misconduct, such as unacceptable behaviour. According to the authors, information about misconduct is not covered by the confidentiality clauses and disclosing misconduct therefore does not constitute a breach of confidentiality.

In light of the events surrounding the talent show The Voice of Holland, it is important to eliminate the possible assumption among candidates and employees that reporting misconduct violates a confidentiality clause. Visser, Vrendenbarg and Trouborst therefore recommend that in practice, it is explicitly stated in such contracts that confidentiality does not cover misconduct. As an accessible way to report misconduct, the authors envisage a role for an external confidential advisor. Contracts could then also state that misconduct can always be reported to the confidential advisor.