The Missing Clause


There is a legal agreement written in very legal language that I had to read today. It’s called Mutual Confidentiality Agreement and is required to be signed by two parties who plan to collaborate on some commercial product or service.

After having plodded through the legalese and having understood most of it (I have an advantage in this regard), I found that there was one clause that was glaringly missing from it.

The document lists all the conditions that apply when the Disclosing Party discloses something to the Recipient. It has a section euphemistically titled ‘Injunctive Relief’ that might send the shivers down the Recipient’s spine, depending on the power balance. It also lists all the exceptions under which these conditions may not apply. Such conditions include “court order” and “as required by law”.

What is missing is something that should be included in all such documents post-9/11, in all countries that went for the security Gold Rush, which practically means all countries, (almost) period.

That missing clause should go something like this:

An (unintended) disclosure by the Recipient to any number of third parties of any of the Disclosing Party’s Confidential Information will not be considered a breach of the agreement if it happens under any of the following conditions:

  1. As part of surveillance operations carried out by the State and any of its agencies, the institution in which the Recipient works or any part thereof, the Local Version of the Truman Show, the Connectivity Service Providers, the Private Security Companies, the Local Quasi-authorised Vigilante Organisations or any other such agencies added to the list till the eve of the day the breach is considered for scrutiny.
  2. [Talking of eve] As a result of eavesdropping by the agencies and organisations listed in 1.
  3. As a result of disclosure by the people involved in (a) surveillance and (b) eavesdropping by the agencies and organisations listed in 1 to any of their superiors, colleagues, sub-ordinates, business associates, friends, relatives, family members or strangers.

The clause sounds very reasonable in the post-9/11 world and makes perfect legal sense. After all, any disclosure made (unintentionally) under conditions listed in this clause would not be the fault of the Recipient and it would only be for The Good of The Country and The World and The Humanity (as everyone knows and agrees to).

I have one doubt, however. Won’t the addition of this clause almost nullify everything else in this agreement to mutual confidentiality?

But the clause is required. Isn’t it?

And what about that poor thing, The Market?

Is it already being forgotten in favour of other things?

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