Do NDAs limit disclosure of their own terms

Question

I have always been interested in putting up a website where people upload NDAs. They would be properly redacted if applicable and reviewed.

I have worked in software for a long time, in many positions, and the variety of NDA silliness is out of this world. I have always wanted to get these in the public domain, ideally associated with the parent company, to provide a forum for discussion on NDA abuse.

The succinct question is "Can this be done legally?".

I see an NDA as a pseudo-public document, something you need to read in detail before you acknowledge and opt-in to limit rights (discussion of topic/tech).

Mainly interested in USA.

Answer 1

The question reads:

I see an NDA as a pseudo-public document, something you need to read in detail before you acknowledge and opt-in to limit rights (discussion of topic/tech).

Unfortunately for this view, the law normally sees an NDA as a private contract, except when it is alleged that it violates public policy. If an NDA explicitly or implicitly includes itself in the list of things not to be disclosed, then posting it would be a violation of the contract. In such a case the party posting the agreement would be subject to whatever consequence the agreement specifies for violation, unless that person had a valid defense. The operator of a web site where the document might be posted would not normally ne a party to the agreement, and so would not be liable for hosting it, unless some other limitation applies, beyond the NDA itself.

An NDA can indeed be a significant limitation on the signer's freedom to discuss certain topics, and a person would be wise to consider it in detail, and perhaps consult a lawyer, before signing one. But that does not mean that the person should post or distribute it publicly, nor that the person is automatically entitled to consult NDAs that others have signed. There are sufficient sample NDA forms available that a person can compare an offered NDA with other possibilities, and get an idea if an offered NDA goes beyond the usual terms.

Answer 2

The logic of the contractual prohibition is this: "We offer you X, and you must agree to terms Y, one part of which is not disclosing Q" (Q could be anything, including the content of that offer"). If you accept the offer, you are bound by it, and if Q includes "cannot disclose the content of this contract", you cannot both accept the contract and disclose the contract. You can reject the contract, in which case you are not bound by the NDA (also, you don't get whatever benefit comes from their offer). For instance, Jones clobbers your car and causes you $50,000 in damage. Rather than litigate, they offer you $51,000 with the proviso that you not reveal the terms of the agreement (the NDA is a part of the settlement offer). You can accept the offer in which case you are bound by the NDA, or you can reject the offer meaning that you don't get the money, and you are free to disclose the offer. It is incumbent on the offeror to devise a method to prevent you from rejecting and disclosing: for example a shorter agreement that they will make a putatively beneficient offer to you, provided that you don't disclose the content of the offer (even if you reject the offer). You cannot be bound to a contract simply by reading it.

This ignores the class of non-contractual NDAs like doctor-patient or attorney-patient confidentiality which might be governed by specific statutory conditions.

Answer 3

It doesn’t matter

An NDA is protected by copyright, just like any other literary work. It is unlikely that the person who uploads it is the owner of that copyright. As such, uploading it is copyright violation and the website owner will spend all their time dealing with DMCA take down notices.

Arguably, posting it is fair use for criticism and commentary, however, that’s an argument for the poster to make. As the website, you will need to take it down unless and until the poster responds. This is likely to make your website frustrating and ultimately worthless.