A non-disclosure agreement that stops you from seeking legal advice about its own terms, or that prevents you from reporting wrongdoing to a regulator, is both unreasonable and potentially unenforceable. Permitted disclosure clauses carve out the situations where you are allowed to share confidential information without breaching the NDA — and understanding them is essential before you sign.
What is a Permitted Disclosures?
Permitted disclosures are exceptions to the general obligation of confidentiality in an NDA. They typically include: disclosures required by law or court order; disclosures to professional advisers (lawyers, accountants) who are themselves bound by confidentiality; disclosures to employees who need to know on a need-to-know basis; and disclosures to regulators exercising their legal functions. The width of permitted disclosures significantly affects how usable the NDA is in practice.
Red flags to watch for
Without this, you may technically breach the NDA by showing it to a solicitor. UK courts would likely not enforce this restriction, but the uncertainty creates a chilling effect.
The FCA, CMA, and other regulators have legal powers to compel disclosure. An NDA cannot override these powers, but a missing carve-out creates unnecessary confusion and potential breach risk.
While prior notice obligations are common, requiring you to resist legal process while the disclosing party seeks an injunction may put you in an impossible position.
In a business context, you may need to share information with team members whose names were not known at signing. Named-individual restrictions are inflexible and often impractical.
A consent requirement that does not include a deemed-consent mechanism or a reasonable time limit gives the other party excessive control over your ability to operate normally.
Your legal rights
Under the Public Interest Disclosure Act 1998, an NDA cannot prevent you from making a protected disclosure about wrongdoing to an appropriate regulatory body. The FCA's rules also specifically prohibit NDAs that restrict reporting to the FCA. From 2019, UK Settlement Agreement reforms strengthened protections around NDAs used in workplace harassment contexts, making clear that confidentiality clauses cannot prevent reports to police or regulators. These rights apply regardless of what the NDA says.
Questions to ask before you sign
- 1Does the NDA explicitly allow me to share it with my legal advisers?
- 2Is there a carve-out for disclosures required by law or by regulators?
- 3If I receive a court order requiring disclosure, what process must I follow?
- 4Who within my organisation is permitted to see the confidential information?
- 5Does the NDA prevent me from reporting wrongdoing to any authority?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.