I am a Canadian resident. I originally asked this question
in
can.legal, but received no answer (the ng seems to be hit and
miss
lately). I'm hoping someone familiar with Canadian law will read
this,
or perhaps someone can offer an educated guess based on their
own
country's legislation.
I've been working as a freelancer for three years for a
government
agency that finances Canadian movie productions. I read
screenplays that
are submitted for financing and write an extensive report on
them,
recommending for or against investing in the project. One of the
conditions I agree to abide by is not divulging any information
about
said projects.
Last year, one such project, which I very strongly advised
should
NOT be financed due to severe shortcomings, went ahead into
production.
I thought this was a grievous error in judgement, especially
given the
huge amount of taxpayers' money that is going into the project,
but
refrained from commenting on it. Then, a few months ago, the
project
made the headlines in a Canadian newspaper, and the article was
posted
in whole on a usenet forum. I replied by commenting strongly on
the
quality of the screenplay, essentially repeating what I said in
my
written report of last year, albeit in stronger terms.
A few weeks ago, my post came back to haunt me as someone
involved
with the project came across my post in a Google search and
reported to
the administration of the financing agency, and as a result my
services
as freelancer were immediately terminated under pretense that I
had
violated the confidentiality agreement.
What I'd like to know is whether any confidentiality can be
expected, considering that I was responding to a newspaper
article about
the project, which article was widely circulated (the article
divulged
the name of the author, the title of the screenplay and the
nature of
the investments, while I merely gave my opinion on the quality
of the
writing). Not only that, but my report on the project could be
read by
most anyone who requested it under access to information
legislation
(although I'd have to check exactly as to who has access, and
when).
What really bothered me was the reaction of the person
who essentially fired me, who was instrumental in authorizing
financing
for the project. That person's comments during our short
telephone
conversation leads me to believe that it was the harsh nature of
my
comments - not their divulgation - that sealed my fate, as
though I were
publically questioning that person's judgement in a mult-million
dollar
financing deal. That person's choice of words was particularly
spiteful,
and I wonder whether I might not have been given a mere rap on
the
fingers had my comments been praiseful.
A lawyer friend suggested that contesting their decision
might not
be worth it, but this contract comprised a good part of my
annual
revenue, and up until this incident my contribution was highly
regarded
(this was clearly stated during the phone conversation by a
third person
sitting in who distributes the work to freelancers).
So, given that I discussed this project AFTER it was
published in
a newspaper article; given that it was the newspaper article
that
divulged the name of the author and the title of the screenplay,
as well
as the identity of the investors; given that I only discussed
the
quality of the writing; can there be such a thing as violation
of
confidentiality?
I know nothing about Canadian law, so this answer cannot be relied
on as legal advice. This is a California answer, for discussion
purposes only.
A confidentiality agreement can be written which prohibits
revealing information regardless of whether it gets into the
public domain by other means. And it can be written so that there
is no obligation after the information gets into the public domain
through no fault of the contractor. We cannot interpret an
agreement that you didn't post.
If the agency had the right to fire you without cause (employment
at-will), then normally they would also have the right to do it
for an erroneous reason. However, this employer is a government
agency. In the U.S., the government may not interfere with
freedom of speech. Doing so would make a lawsuit viable against
the person who fired you, for interference with civil rights.
Also, there is a law in California which makes a labor code
violation out of firing someone for activities which are legal and
which are conducted off of the employer's premises and outside of
the employer's time. So if Canada has similar rules, You would
have a viable claim for damages and possibly reinstatement, if it
turns out there was no violation of the confidentiality agreement.
I think you should see a local attorney about it.
McGyver
