I do not understand the analogy with NDAs. In my experience, an NDA is negotiated and agreed before the confidential information is shared. Signing it is a precondition for receiving that information. Blackmail begins after the confidential information has been obtained by one party against the other party’s wishes. What is paradoxical about the former being legal and the latter illegal? Surely blackmail is more analogous to demanding someone’s money in return for not burning their house down? In fact, in the Scottish and English legal systems, demanding money with the threat of exposing information is not in a separate category from demanding money with any other sort of menace.
In that case, a key difference between an NDA and blackmail is that the former fulfils the requirements of a contract, while the latter does not (and not merely by being a currently illegal act).
With an NDA where the information is already shared, the party who would prefer that it go no further proactively offers something in return for the other’s continued silence. Each party is offering a consideration to the other.
If the other party had initiated the matter by threatening to reveal the information unless paid off, there is no contract. Threatening harm and offering to refrain is not a valid consideration. On the contrary, it is the very definition of extortion.
Compare cases where it is not information that is at issue. If a housing developer threatens to build an eyesore next to your property unless you pay him off, that is extortion. If you discover that he is planning to build something you would prefer not to be built, you might offer to buy the land from him. That would be a legal agreement.
I don’t know if you would favour legalising all forms of extortion, but that would be a different argument.
But the typical use of NDAs is notably different from the typical use of blackmail, isn’t it? Even though in principle they could be used in all the same situations, they’re aren’t used that way in practice. Doesn’t that make it reasonable to treat them differently?
Then perhaps we should ban this form of NDAs, rather than legalizing blackmail. They seem to have a pretty negative reputation already, and the NDAs that are necessary for business are the other type (signed before info is known).
I do not understand the analogy with NDAs. In my experience, an NDA is negotiated and agreed before the confidential information is shared. Signing it is a precondition for receiving that information. Blackmail begins after the confidential information has been obtained by one party against the other party’s wishes. What is paradoxical about the former being legal and the latter illegal? Surely blackmail is more analogous to demanding someone’s money in return for not burning their house down? In fact, in the Scottish and English legal systems, demanding money with the threat of exposing information is not in a separate category from demanding money with any other sort of menace.
NDAs are also legal in the case where info was known before the agreement. For example, Trump using NDAs to keep affairs secret.
In that case, a key difference between an NDA and blackmail is that the former fulfils the requirements of a contract, while the latter does not (and not merely by being a currently illegal act).
With an NDA where the information is already shared, the party who would prefer that it go no further proactively offers something in return for the other’s continued silence. Each party is offering a consideration to the other.
If the other party had initiated the matter by threatening to reveal the information unless paid off, there is no contract. Threatening harm and offering to refrain is not a valid consideration. On the contrary, it is the very definition of extortion.
Compare cases where it is not information that is at issue. If a housing developer threatens to build an eyesore next to your property unless you pay him off, that is extortion. If you discover that he is planning to build something you would prefer not to be built, you might offer to buy the land from him. That would be a legal agreement.
I don’t know if you would favour legalising all forms of extortion, but that would be a different argument.
But the typical use of NDAs is notably different from the typical use of blackmail, isn’t it? Even though in principle they could be used in all the same situations, they’re aren’t used that way in practice. Doesn’t that make it reasonable to treat them differently?
Then perhaps we should ban this form of NDAs, rather than legalizing blackmail. They seem to have a pretty negative reputation already, and the NDAs that are necessary for business are the other type (signed before info is known).
NDAs are common in legal settlements and severance agreements. e.g. If we settle out of court, you agree not to tell anyone about it.