Whisper Networks and Gagging Orders: The Dark Side of Non-Disclosure Agreements

Transcript of conversation with Victoria Pagan published 21 May 2025

Transcript prepared by JAS Virtual Services.

You can listen to the podcast here or watch it here.

Naomi Murphy

Today we're joined by Victoria Pagan. Victoria is a Senior Lecturer in Strategic Management at Newcastle University and she researches how knowledge is used and violated alongside morality and ethics. She explores tensions between secrecy and transparency. And it's been particularly interesting to read your work, Victoria, on the use of non disclosure agreements when misused to silence those with less power. Really glad you could come along and talk about your work with us today.

Victoria Pagan [00:00:51]:

Thank you. Thank you very much for the invitation.

David Jones [00:00:54]:

Hello there, Victoria. Very good to meet you. So how did you first get interested in researching non disclosure agreements?

Victoria Pagan [00:01:04]:

Yeah, so this topic really came to me around the disclosures around Harvey Weinstein and Philip Green in the UK. These things came into the media around the same time and at the time I was around the edges of some of the philosophy around silencing and voice in organisations. But those stories that were coming out were so powerful that it really made me want to dig deeper into their use and misuse as tools, I guess, within a range of organisational settings. The Weinstein examples obviously being in the States as well, but with examples closer to home that were being covered in the media, not only in commercial organisations, but sadly I was finding that there were examples from my own sector and universities as well as other public sector organisations. So it was really a sort of interest across organisations and understanding how they were being used and abused to silence people who had been suffering misconduct that had taken place in their organisations, places where they should feel safe to work. And so that was where the interest really stemmed.

David Jones [00:02:24]:

Thank you very much. I mean, I noticed you've got an admirable record really of working in the public service. Was this something you kind of noticed during that period of time?

Victoria Pagan [00:02:37]:

No, no, it was something that I think I'd always been aware of organisational behaviours and practices and processes that weren't good, that were perhaps hiding behaviours that certainly were unethical, immoral. But it wasn't until the actual talk of this being something that was legally used to stop information coming out about those sorts of behaviours and also understanding that it had a real suppression where it came to criminal behaviour, I think that was something that didn't come out until I saw it in the news coverage, but certainly having worked in organisations, you were aware of rumour and discussion of people and their actions that certainly would be classed as misconduct of some description but perhaps not enough to take action against or the actions that were being taken were again, that sort of slightly cryptic, slightly glossed over in terms of actually addressing those behaviours.

David Jones [00:03:46]:

Can you say a bit more about that? Cryptic glossed over?

Victoria Pagan [00:03:51]:

Yeah. So I think it again it's come out quite recently, I think with some of those behaviours. I'm thinking of Greg Wallace for example, that's been in the media recently and other sort of more high profile people where perhaps things are said and done that have been excused away as banter or people have just been embarrassed to perhaps say anything at the time or have been socialised into a space where it could be considered rude to challenge such that they're not challenged. And even when there are sort of several instances of it happening again, I think there's perhaps not been enough of a volume perhaps to actually address properly such that I've heard examples where people have sort of warned people in sort of whisper networks. That's something I've come across in the literature and in the discussion about just be careful around that person or don't be alone with that person. I appreciate the examples that I'm sharing are largely around sexual misconduct, but that could also be around bullying behaviours of other kinds. It's not necessarily just that, but I think ways in which people have perhaps had coping mechanisms that have continued those behaviours or enabled those behaviours to continue in ways that then haven't been addressed. And then where they are addressed, that's perhaps where the non disclosure agreements have been used to protect the perpetrator of those behaviours rather than necessarily seeking justice for the victim of those behaviours or accountability for those behaviours that would be more in favour of those who are experiencing them.

Naomi Murphy [00:05:41]:

It's really interesting to hear you talking about whisper networks because I think as a woman of a certain age, and I'm sure there are male equivalents also, I think alongside Greg Wallace we've also seen a video footage of female presenters behaving in inappropriate ways as well. But that's reminding me of a conversation that we had with Zelda Perkins who was PA to Harvey Weinstein and went on to found Can't Buy my Silence. And I know that they're exploring the kind of behaviours that knowledge of is suppressed by the use of NDAs inappropriately at the moment. So if anybody listening had that experience, do go onto their website and complete the survey if you want to share your knowledge or your information.

Victoria Pagan [00:06:24]:

Absolutely, absolutely. I think it's finding ways to get that knowledge out there where people are subject to those agreements, which can feel incredibly restrictive. And I'm not a legal expert by any means, but certainly in the accounts that I've read there is some uncertainty as to the tightness of those agreements in a legal sense. But regardless of that, whether it gets litigated in court or not, if people are feeling like they can't speak out, then that is a restriction. So certainly, absolutely the work of Can't Buy my Silence. The Speak Out Revolution is another organisation, NDA Free, which works particularly with Christian organisations. These are spaces where people can share carefully and confidentially and gain perhaps a sense of relief at least being able to get the story out without it coming back on them directly. I think the other space, which is where I took my research from, was the inquiry that took place through the Women Inequalities Committee of the government and the stories that were shared there.

Victoria Pagan [00:07:38]:

Again, some, like Zelda, felt able to be named and speak up and be known for her contributions. But it did offer a way for those who couldn't to still have a place to put that experience and have it be taken seriously.

David Jones [00:07:54]:

Thank you, Victoria. Most of the academic literature on NDAs is centred on the law. What perspective are you taking?

Victoria Pagan [00:08:04]:

Yeah, and it's an important part of it. Absolutely. From the legal perspective, my interest is around organisations and what I mean by that is really the social context of the behaviours and experiences that happen in places of work or places of worship or places of protection. So institutions like sort of care facilities, care homes, these sorts of spaces where they're spaces where people should feel able to engage without feeling like they are going to be subject to these sorts of behaviours. And even in some of those cases they are spaces that are there to protect people. So it's that organisational context that I'm really interested in, given the fact that people have, you know, such a big part of people's lives is working lives, so workplaces, from that perspective, but also studying and worshipping, as I say, in social spaces, these are all big parts of everyday lived experience, such that I think that the law is a big part of it, but there's other parts of life that can be affected.

David Jones [00:09:16]:

Thank you. Do you think there are occasions when NDAs are legitimate?

Victoria Pagan [00:09:24]:

Absolutely, yeah. And certainly that, from my understanding of how they kind of developed in law, it was about protecting commercial property, intellectual property, adding an extra layer to perhaps where people were working in circumstances where sensitive information was being discussed. And so it would be right to have an additional layer of protection to prevent that information from coming out. So, yeah, they definitely do have a legitimate space. I think it's just what we're certainly seeing as being challenged is where they're used to hide illegal behaviours, for example, in terms of discrimination, as well as immoral or unethical behaviours too.

David Jones [00:10:14]:

Yes, you can see it's important to make that kind of distinction, really. So I was wondering about the difference between a legal perspective and a moral perspective when it comes to NDAs. Do you think that's an important distinction? What kind of part does it play in everyday life?

Victoria Pagan [00:10:36]:

Yeah, I think for me it's about the incident that happens and sometimes where the incident perhaps doesn't have sufficient, I hesitate to use the word seriousness, but I suppose it's about that there's a legal threshold that incidents have to meet in order to be taken to the police and for prosecutions to occur. And for me, I suppose what I'm reading just from a personal perspective, is that threshold is quite high. And so, I think that when I'm thinking about the sorts of accounts that I've read of people's experiences, it perhaps hasn't been considered enough to go to the police about, but it's certainly enough that it has had a really detrimental effect on a person and caused a trauma, caused physical and mental problems and ill health, caused damage to career. So I think that's where I see a challenge in terms of how these behaviours can be addressed in a way that is forcing an accountability on people for what I consider to be a sort of moral and ethical wrong that isn't a legal wrong. And I think whilst there are aspects of employment law that can take some of that into account, particularly around discrimination and acts under the Equality Act, I still think that we're perhaps missing something in organisations that enables people to feel a sense of justice when they have been wronged, that isn't fully accounted for in the processes and policies that we have at present.

David Jones [00:12:20]:

Thank you. You use very evocative language when writing about NDAs. You talk about the murder of knowledge. So what's the reason for that use of language?

Victoria Pagan [00:12:41]:

Yeah. I suppose what I was trying to communicate was a little bit of a shock factor, I guess, and an attention grabbing of the issue to really bring home the devastating effects on some of the people who have been subject to these situations. I think that what I was getting in the data, and I suppose it's where I started, where I ended. I started it with haunting, before I kind of got to murder, because I felt that in people's accounts they were carrying this experience over a long time and they were haunted by it, that it stayed with them. And I suppose I just sort of extrapolated the metaphor a little bit to sort of think, well, what's happened in some of these cases is that their understanding of their lived experience, their knowledge of their lived experience, the NDA has tried to erase that. And so I used murder as a way of sort of emphasising how weaponised I felt that the NDA was being to people's experiences and understandings and legitimate feelings about what they'd gone through. So, yeah, I think, I appreciate it perhaps sounds dramatic and I think that's okay because I think it does, in my view, really try to put out there that these experiences have been extremely traumatic and extremely detrimental to those who've experienced them.

David Jones [00:14:20]:

Thank you. I think when you put it like that, it makes absolute sense.

Naomi Murphy [00:14:24]:

Yeah, the language really stood out for me because your paper resonates with the accounts of, you know, listening to people who have felt coerced into signing NDAs. Actually, what really surprised me is how little. Well, there is no research on the psychological impact of signing an NDA, even after a crime's been committed. And I know there's a researcher at Nottingham Trent University, Frey Abowath, who's just exploring that right now under the supervision of Belinda Winder, so excited to see what she finds. But what did you notice in your observations? What happens when information is killed off by an NDA?

Victoria Pagan [00:15:01]:

I think that suppression is remarkably impactful on people that some didn't even feel able to talk to their spouse about it. They didn't feel able to talk to their doctor if they were holding that trauma with them. Now, again, in some of the legal accounts that's been suggested that that's the wrong impression to have, but that doesn't necessarily stop it happening and then stopping that feeling of complete restriction. Another paper, and again, taking from the language of the accounts, I talk about gagging and I think I use, again, going back to the sort of metaphor of a scold's bridal, a torture device, a silencing of women device from history. But again, it really brings a sort of visceral side to it. That imagining someone actually physically having something in their mouth that they cannot speak and just again translating that into the non material of the NDA. The effect, and I hesitate to say psychological effect, I'm not a psychologist, but I guess the effect on the person that I was seeing was physical and mental and embodied reaction to something that they were being, in their view, completely restricted from saying anything about.

Victoria Pagan [00:16:29]:

So unable to seek psychological help, unable to process the trauma in any way that they should have been able to from their perspective. And as, again I say, you know, I'm sure that there will be legal colleagues who will challenge that, but as what I'm seeing from these accounts is that this is the effect on them and that's what I felt was important to explore.

Naomi Murphy [00:16:56]:

Of course, colloquially they are known as gagging orders, aren't they? And it was interesting to watch your body language as you spoke about them and kind of constricting yourself and making yourself very small for anyone who's listening rather than watching. Are some voices more likely to be silenced than others?

Victoria Pagan [00:17:10]:

Yeah, I think in the data that I've been working with, it may be the nature of the types of misconduct that are coming out, but there's very definitely power differentials involved in silencing. And I believe that the Speak Out Revolution data is also bearing this out from a more quantitative perspective too, but where the person who is committing the misconduct and leading on the NDA tends to be more at a managerial level compared to sort of lower in the organisation, the sort of more general workers. So there's that sort of power. I have argued that from, certainly from the data that I've looked at, that there does seem to be more use by men against women. And I hesitate to use a gender binary, but in terms of the way that people have identified in my data, that's the distinction that comes out. There's certainly in the literature around epistemic injustice, which this is sort of theoretically where this sits. There's a lot of work been done around intersections with race and one example that I think particularly stood out and I'm not sure it was fully ever explored as to whether an NDA was involved.

Victoria Pagan [00:18:36]:

The Dominique Strauss Kahn example of his misconduct against a housekeeper in a hotel, you've got power plus race intersecting there and certainly she was sort of presented as not being a particularly viable witness. So there's all of those sorts of things that do seem to intersect. So whilst as I say, this is not something that I've looked at in a particularly systematic way. It certainly appears that the marginalisations in society are replicated in terms of the silencing through these tools.

Naomi Murphy [00:19:16]:

Thank you. How do you think NDAs have been allowed to flourish even when crime has been committed?

Victoria Pagan [00:19:21]:

Yeah, I do wonder if this is where the law plays a part and I think that it seems to be where if there's been a misconduct in an organisation, the legal team and the HR department of the organisation have generally been bigger and better resourced than the person who has ended up signing the NDA. So I think there's a resource angle to that in terms of being able to get legal advice and I think that is much more available to some than others, despite legal aid. So I think that's one angle. I guess another is that there perhaps are certain legal interpretations which have been used to deliver these NDAs in contexts where perhaps that shouldn't have happened. And there has been two warning notices actually from the solicitors regulation authority about their misuse in these situations. But I guess that the law is subject to interpretation and subject to argument and so there's perhaps always going to be that differential of how they're applied which means that they can be used and misused more than we would expect to see.

Naomi Murphy [00:20:55]:

Seems like the law can be used very symbolically as well, can't it that actually people presented with these lengthy legalistic documents and I suppose quite often in these cases it seems like the, or certainly the high profile ones that we see of sexual misconduct of like you say, mainly male celebrities and then you have a succession of young women who perhaps there's a sense of being deferential to authority, being intimidated by this legal documents and perhaps not having the kind of connections where they can explore these with people with more experience.

Victoria Pagan [00:21:34]:

Yes, I think so. And I think there's also other social factors that perhaps play into that in terms of women perhaps still being a perception of sleeping their way to the top, for example, and that being again used as a way to dismiss misconduct, particularly from a sexual harassment perspective. There's still the, you know, what was she wearing and how much alcohol was consumed and all of these sorts of narratives that play into perceptions of women and men and their relationships in workplaces and other settings such that I think that that does further contribute to the silencing of these sort of situations and situations where victims just want to get on with their lives in whichever best way that they can. And the NDAs offer a little bit of a way out, I guess, a settlement. And they're often put in that form to say, you'll be able to move on with your life if you just sign this. And so that goes on.

Naomi Murphy [00:22:42]:

You're also analysing the work of IICSA, the Independent Inquiry into Childhood Sexual Abuse. How else are victims of crime silenced?

Victoria Pagan [00:22:51]:

Yeah, so this is really a massive inquiry and it has been in the media again recently with some criticisms that the recommendations haven't been implemented. Calls for more inquiries, things like that. It’s an inquiry that took place between 2015 and 2020, I think, was the last report across a number of investigations of various different contexts in which children were abused. The inquiry was largely taking accounts from adult survivors of that abuse who have been sharing their experiences. And I think one of the things that's come out from the research, which echoes other research that's been done around child sexual abuse, is that power dynamic between adults and children. Also the situations in which some of these children were finding themselves, particularly if they were in care or an institutional school, they were perhaps positioned as somehow wrong in themselves or somehow slightly absent or just not visible, which created a situation where perhaps they could be exploited more easily than in other settings. I think that sometimes I've found in the piece of work that I'm just writing at the moment, looks at religious organisations and settings and that there's something around again, that distinction between the adults who work in those organisations.

Victoria Pagan [00:24:32]:

So they're the teachers, they're the elders, the vicars, however they're perhaps called. But the people that are in authority are more valued than those who follow worship. And particularly sort of given the adult child dynamic as well, children being particularly vulnerable to abuse in those sorts of contexts. Some of the ways in which those people are valued in authority does relate to a deity or a scripture. And using those relationships with a God, looking at what's written in the Bible and using that as a way to both frame the abuse as being special somehow, but also being used to say, you mustn't say anything because this is what is happening through our spiritual relationship. So, yeah, I think that that's just one example that I've been coming across in that data.

Naomi Murphy [00:25:30]:

As you were talking, I was reminded of the clinical psychologist in Sheffield, Adam Saradjian. And his doctorate research was on the cognitive distortions used by priests, Roman Catholic priests who sexually offended and how they incorporated their religious beliefs into a way of sort of justifying their actions. And you can imagine that they would also use those with the children as they abuse them as well. In some ways. You don't need the lawyers, do you? If you're in a religion, in an organisation where there is another form of authority that's perhaps even more scary than the law for children. Yeah, I don't know if he ever published that actually. I imagine he probably did, but I'm not sure.

Naomi Murphy [00:26:12]:

A lot of your work is focused around people telling their own stories. How can we protect our voices? What would you encourage people to do?

Victoria Pagan [00:26:21]:

Yeah, I think it's about finding an outlet perhaps for our stories and that can be a very personal thing. And there is a line of inquiry in the data that looks to be concerned with people who are sharing their stories because of the potential to retraumatise or almost be seen as people sort of feeding off their trauma, if that makes sense. Sort of putting the story out there for people's consumption could be perceived. Some people will find it salacious and gossipy and all those sort of negative things. So I think protecting the person in how they wish to express their stories is really important. So that can be very personal through journaling. So keep, you know, just writing things down, recording their voices on their own devices. It is that sort of from within coming out of the body again, that sort of expression either through writing, typing and verbalising for themselves, I think finding other ways to tell stories.

Victoria Pagan [00:27:31]:

So I think this is where there is a place for the sorts of inquiries that I've been looking at. The IICSA had a pure stream that was called the Truth Project which was purely for victim survivors being able to express their stories. Similarly with the Women Inequalities Committee inquiry, then you have the organisations like Can't Buy My Silence NDA free and Speak Out Revolution that again offer a space to perhaps more publicly tell the story, but not too publicly. There are examples where people have taken to the media. I mean the Weinstein story and the sort of groundswell around MeToo at that time came from people being brave enough to speak to journalists. And that does require an awful lot of bravery. We all know that the media is not one beast.

Victoria Pagan [00:28:25]:

There are various different ways in which stories can be taken and twisted or taken and represented effectively. So I think I can't imagine how much it took for those to share their stories in that way. I suppose there can be steps as well to sort of start to share in a particular way and then escalate that sharing, once a few more allies come around, protection, I think through friends, through family, through being able to access appropriate counselling, support, these are all really, really important as part of the protection of the person who's sharing their trauma.

David Jones [00:29:06]:

Thank you, Victoria. Now, I was going to ask you if we need to do more to support one another, but it's a bit like asking if you like the idea of world peace. So instead, what do you think are the obstacles that prevent people being more supportive to each other from your perspective?

Victoria Pagan [00:29:29]:

I think there's something around whether they'll be believed. So I think there's sometimes a fear from that perspective as to whether they will be taken seriously when they're reporting something that's happened. So I think perhaps within organisations, given that's sort of what I'm looking for, perhaps more of a moving from a position of defensiveness. I think organisations sometimes are quite defensive when they hear bad things have happened. And I completely understand why that would be an expression of reaction. But I think it's perhaps more about understanding that we need to hear where things are going wrong and instead of trying to put the defences up against the things going wrong, hearing what's going wrong and then trying to think of actions to stop it happening again. And I think that's where organisations and the law possibly again have attention, because organisations, I'm using that term very loosely, but I think people within organisations are again concerned about litigation, tribunals, all of the legal ramifications potentially of getting something wrong. So rather than perhaps sitting with the experience with the person that's experienced it and trying to think about what that person needs without instantly sort of worrying about how can we defend ourselves against what might be seen as an attack.

Victoria Pagan [00:31:02]:

That, to me is something that could potentially be explored in more detail and could both benefit the victim survivor, but also look at a better organisational context for everybody within it, such that the experience, if you have people whose behaviour continues to be immoral, unethical, potentially criminal, that becomes less enabled if there is a more open discussion about this is not acceptable, this is what we are going to do about it and we're going to look after you and your interests and we're going to make sure that that person is investigated fully and isn't protected just because of who they are within the organisation. It's a bit of a world peace dream.

Naomi Murphy [00:32:04]:

But it's not without precedent. I was just thinking as you were talking that, as a society, we get very focused on, a trial and a conviction for wrongdoing. And if the person is let off, that's the end of the matter or their sentence. But actually, restorative justice offers a way forward. And that's used in some other societies, like in African countries, in aboriginal society, as a way of, you know, there's acknowledgement of harm which is important for the victim and perhaps lessens some of the hurt that gets caused that, you know, the denial of responsibility seems to compound the original injury, doesn't it? And then actually being able to have a conversation and find reparative action. And it would be good to see some of these organisations implementing something that looked more like restorative justice than a trial, whether there's a with or without a guilty verdict at the end of it.

Victoria Pagan [00:32:59]:

Yeah, the power of the apology. I think I have seen an example in the IICSA data, unfortunately, where there was an example where it was put to the victim that the person would apologise, but the victim had to help draft the apology, which just, again, felt so insincere. And I think there's also something social around women apologising more than men and, you know, men, or this sort of, again, a kind of push towards don't apologise. Just, it's an admission of guilt and wrongdoing, all that kind of stuff. So, yeah, I think it could be very, very powerful in terms of that restorative justice you're talking about. I think it is about how we work together with one another to change some attitudes and views on that as an approach.

Victoria Pagan [00:33:54]:

Definitely.

David Jones [00:33:55]:

So you mentioned a couple of times this sort of imbalance between the sexes. I think earlier on you mentioned that it's more often men taking out NDA against women and you've mentioned the similar palates. Do you think that's primarily due to the kind of intrinsic power imbalance, that there are more men in powerful positions, for example, or do you think there's something else at work there?

Victoria Pagan [00:34:22]:

I think that has to be part of it. As I say, I think the inequalities and marginalisations that are playing out in these situations do replicate other social marginalisations and hierarchies. As I say, I don't want to be too binary on gender, but just based on what I've seen in terms of those sorts of accounts that are in the data, I think there's something around the patriarchy. So thinking about these sorts of structural aspects that play out through society and then trickle through organisations. You're right, there's a pure numbers game, that there's more men at the top than there are women. I think that again, it's just in my mind because it was in the news at lunchtime increase of violence against women and girls that is happening across England and Wales. And arguably that could be about reporting, it could be about lots of different factors.

Victoria Pagan [00:35:24]:

But regardless of that as a pattern, anything that's been done to try and address that seems to be having limited effect. And I guess one of the things I'm trying to take into account in my work is even how sort of organisations and workplaces play a part in a sort of violence. It is, you know, hence using the language that I talked about earlier. All of this to me feels like it's contributing to a way of being and doing that is escalating a power imbalance between certainly two genders. Certainly, you know, if not other trans and much more marginalised as well. You know, I think that my concern is that that's not going away. Given what we're hearing from other parts of the world. It could get even worse.

Victoria Pagan [00:36:32]:

So, yeah, I think we cannot ignore that. And yeah, that's probably all I'd say on it at the moment.

David Jones [00:36:41]:

Thank you, Naomi.

Naomi Murphy [00:36:43]:

So it's quite depressing really, when you think about the use of, about squashing people's stories. But I wonder how you keep yourself feeling optimistic about society when you're doing the kind of work and hearing the kind of stories that you've heard.

Victoria Pagan [00:36:59]:

Yeah, I mean, I think there have been some quite high profile successes in Canada with Julia McFarlane and the Can’t Buy my Silence team there and Northern Ireland. In my own sector, there was a set of universities who've signed a pledge to not use NDAs to hide misconduct. So both from a legal perspective in Northern Ireland and Canada, and perhaps a more voluntary nature when it comes to the universities, I think at least it's a sort of demonstration that things can move and that additional protections can be put in place. I think that actually hearing the stories coming out, as much as they're really hard to hear, that we're hearing them is a victory in itself because it sort of takes the power out of the tool and makes people more perhaps conscious of not using them or certainly more conscious of how they can be misused if they were ever in a situation where this was part of what was happening around them. That they could resist maybe a little bit more so I think there's that angle to it that you sort of try and hold on to that sort of optimism. I think knowing that there are organisations that are actively challenging all of this is very important and certainly holding on to those who are really trying to protect the rights of the most vulnerable, the most marginalised, it's getting harder I think to do that work or we may need to find different ways to talk about that work that takes away from some of the critique of the WOKE agenda and DEI and EDI and these sorts of terminologies that have really been around social justice and restorative justice. I think the work stays the same, the work is about ensuring that people are enabled to feel valued and feel safe in their everyday lives, particularly around in my context the sort of workplace and the organisations around thank.

David Jones [00:39:07]:

You very much thanks so much Victoria. It's a real privilege to have you here talking with us.