Why you should care
Because this could ward off revenge porn.
It seems like a preoccupation of the rich and famous — how to keep their private parts, well, private. Some, like Charlie Sheen and Justin Bieber, require their would-be sex buddies to sign a nondisclosure agreement before doing the deed, at least if the Reddit tales are to be believed. (Sheen’s and Bieber’s representatives did not respond to our request for comment.)
The trend, so far, appears limited to paparazzi prey. But why shouldn’t the rest of us make sure that what happens in bed stays in bed? After all, the ubiquity of smartphones has endangered personal privacy as never before, as the troubling trend of revenge porn — spurned lovers posting intimate photos or videos as a means of control — suggests. Meanwhile, we in the hoi polloi have fewer means to spin the fallout to our advantage. So here is our proposal: Make confidentiality contracts as mandatory to safe sex as a condom. Sure, both can be icky and unromantic. But better safe than sorry, right?
NDAs already have widespread uses, from businesses trying to keep freelancers from spilling the beans on sensitive deals to government agencies keeping classified info from leaking, to families who employ nannies and want their dirty laundry cleaned, not aired, says Katherine Taylor, a Maryland-based lawyer who works many of these types of cases. While the majority of Taylor’s clients are wealthy and fairly well known, nothing about NDAs smacks intrinsically of privilege. The right lawyer “could probably put together a pretty solid agreement in a couple of hours,” she says, and it could be used in multiple scenarios … or with multiple partners.
Of course, try getting someone to sign your relationship on the dot, and a swift slap might be in your future. Uncomfortable conversations about trust and boundaries don’t tend to get any easier when a lawyer enters the mix. It’s probably naive to “expect people to secure such agreements,” Clare McGlynn, a professor who specializes in the nebulous laws surrounding revenge porn and violence against women, tells OZY: Sending pics is supposed to be flirty, but signatures have a way of putting off the most sultry lovers. And an NDA won’t stop naughty pics from getting out — it can serve only as a deterrent, Taylor says, putting a price on any betrayal of trust and making it easier to settle in court.
It may seem like a drastic step, but there’s no guarantee that your right to privacy alone will help in court: In 2014’s People v. Barber, the first “revenge porn” case in the United States, a woman alleged that her ex-boyfriend sent her nude pictures to her sister and her employer — but while he faced three charges, they didn’t stick. “The judge recognized that the girlfriend did not grant permission to her boyfriend to send the images,” writes Steven Brill, a New York criminal defense attorney, but “no laws in New York could support the criminal charges.”
A contract, however, could have given the victim recourse. “[NDAs] can bolster that wall” that prevents a sex tape or private moment being put on the internet, Taylor says, and if such agreements become commonplace, it would erase the stigma tied to them. “It will become something that’s just expected,” she says. Kind of like using protection, actually.