They seem pretty damn similar to me. One party does not want embarrassing information (or possibly incriminating information) to get out to the public, and makes a deal with another party who has that information and might release it.
I suppose the biggest fundamental difference is that a confidentiality agreement is written and legally enforceable.
If you know that I slept with my wife and I’m willing to pay $10,000 to keep it quiet, a confidentiality agreement gives me legal recourse if you fail to keep quiet. I can sue to get my money back (and probably additional damages as well). If you decide you want more money, I just have to point to the contract where you’ve already agreed to be silent for what was already paid.
With blackmail, there’s no agreement; not only do I not have recourse, you can keep coming back for more money.
I could argue, them that blackmail is an unwritten contract, a verbal agreement. I would think there has to be more to it than that.
A confidentiality agreement is an agreement (I know, duh). Both parties have an interest in keeping the agreement. This is typically done between two companies that need to share proprietary information in order to do business with each other.
Blackmail is one party unilaterally threatening another if the second party doesn’t do what they want. It is not an agreement at all.
I appreciate that you are manufacturing an example, but would you really pay someone to keep quiet that you slept with your own wife? 
It would only be enforceable as a verbal contract if the silence was for less than a year. Statute of frauds - Wikipedia
Oops. Yeah, I kind of mushed two versions of the sentence in there.
“cheated on” makes more sense for the example.
One distinction I can think of is that generally in confidentiality agreements, the agreement is formed before the secret is learned. With blackmail, you find out a secret, and then go to the other party and say “If you don’t want me to tell X, then you’d better pay me.”
With confidentiality agreements, on the other hand - I think that the money also tends to go the other way. We want to go into business, and in order for both of us to make a profit, I’ll have to tell you my secret. So we write up an agreement that says, among other things, “If you tell anybody else, then you have to pay me a million dollars.”
Does that help?
Maybe you are Henry the Eighth and are petitioning the Pope for an annulment on the grounds that the marriage was never consummated?
In blackmail, you pay someone else to keep a secret.
In a confidentiality agreement, you pay if you release a secret.
If you’re blackmailed, you can reveal the secret without any financial penalty. In a confidentiality agreement, you cannot.
But blackmail is a crime. There must be something substantially different between it and an unenforceable contract.
I was reminded of this by a comment in a Law & Order episode. To paraphrase, “You have embarrassing information about a celebrity. If you try to get payment to keep silent, you could end up in prison. Or, you could write a tell-all book and make a million bucks and nobody could put you in jail.”
As to agreements with corporations, I was thinking more about lawsuit settlements where the company pays and the (alleged) victim agrees not to discuss the terms of the settlement and presumably whatever evidence they have regarding the culpability of the company.
A confidentially agreement is one permitted by law, such as a non disclosure of a money award total in a civil suit. The parties can agree to it or not, that is why it is called an agreement.
In my state, Ohio, we have a crime called “Compounding a crime”. If a person assaults me and I say pay me $1,000 or I will file a criminal complaint against you, that may seem on it’s face as BLACKMAIL. The law though provides an affirmitive defense if I do it, that the amount requested is in fair proportion to my damages.
Your explanation seems more related to keeping commercial secrets like proprietary formulas or manufacturing processes
But they’re not all like that. As I noted in my post just above, a company may pay a victim to keep silent about the details of something as part of a settlement in a lawsuit.
This is interesting, and I haven’t heard of it before. IOW, the person demanding the money has to be doing so as a means of recovering damages? So, if I promise to keep silent about you assaulting someone else in exchange for $1000, then I’m committing a crime?
Well, I should have looked before I leaped, assault is not one of the crimes listed in the statute, my error, sorry.
There are 4 though.
Chapter 2921: OFFENSES AGAINST JUSTICE AND PUBLIC ADMINISTRATION
2921.21 Compounding a crime.
(A) No person shall knowingly demand, accept, or agree to accept anything of value in consideration of abandoning or agreeing to abandon a pending criminal prosecution.
(B) It is an affirmative defense to a charge under this section when both of the following apply:
(1) The pending prosecution involved is for a violation of section 2913.02 or 2913.11, division (B)(2) of section 2913.21, or section 2913.47 of the Revised Code, of which the actor under this section was the victim.
(2) The thing of value demanded, accepted, or agreed to be accepted, in consideration of abandoning or agreeing to abandon the prosecution, did not exceed an amount that the actor reasonably believed due him as restitution for the loss caused him by the offense.
(C) When a prosecuting witness abandons or agrees to abandon a prosecution under division (B) of this section, the abandonment or agreement in no way binds the state to abandoning the prosecution.
(D) Whoever violates this section is guilty of compounding a crime, a misdemeanor of the first degree.
Effective Date: 07-18-1990
A confidentiality agreement is done with a meeting of the minds where both parties get some type of compensation that public policy favors. Any “dirt” that you have on the other party is through your own direct dealings regarding the matter at issue, so you have a vested interest in it. So long as not otherwise prohibited by law, you can disclose or be paid to remain silent as you wish.
Blackmail is just enrichment done under duress for no purpose except to enrich an eavesdropper who contributed nothing to the transaction and does not benefit society in any way.
Examples:
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You cheat on your wife. The neighbor finds out. You pay him $10,000 to keep quiet. That is blackmail. For what purpose does making the neighbor $10,000 richer help anyone at all but the neighbor? Your wife is still in the dark and you are still in an adulterous relationship.
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You cheat on your wife. SHE finds out. You pay her $10,000 in the divorce settlement so long as she never tells you cheated on her. Society favors this because your wife was the wronged party, she is comfortable with $10,000 as full satisfaction, it is none of anyone else’s business anyways, you keep your secret, and all is happy in happyland.
See the differences between 1 and 2 and why society approves of one and not the other?
I do see the distinction you are trying to make, but I don’t know how applicable it is.
For one thing, the neighbor keeping silent also helps the cheater, so the neighbor is not the sole beneficiary. The cheater isn’t FORCED to pay, and if he does it’s because he sees some benefit to it. Though I’m not sure if, in a legal sense, avoiding a penalty is synonymous with a “benefit”.
And take the L&O episode. The celebrity is clearly benefiting by not having career damaging information released. And the money earned from a tell-all book won’t do anyone but the author any good either.
Genarally, though, some confidentiality agreements are of the flavor “You are suing over damages from our shoddy lab/kitchen/legal office procedures. We agree to compensate you handsomely provided you never discuss what we agreed to, or how much we give you.”
This sounds very much like hush money. In fact it is. I assume that if the misconduct under nondisclosure is in fact criminally negligent, say, then is this not bribery or blackmail? What’s the legal position of lawyers who find out about this criminal behaviour duing their work with the case, then go on to arrage hush money?
Is it a crime to offer someone money not to disclose a crime?
(In L&O, everyone’s favourite source of legal “knowledge”, quite often we see the ex-maid or ex-medical-worker or other ex-employee say “I can’t discuss that, I’m under non-disclosure.” I would think obligation to talk to police must have certain priority. Certainly legal testimony in court would. Several employees of Holywood celebrities, for example, are under strict non-disclosure agreements and have been threatened with lawsuits, IIRC)
You are absolutely right. Certain types of agreements the law will enforce, but others it will not. The distinction is usually based on public policy. When it an especially bad violation of public policy, not only is it non-enforceable, but criminal. Contract law is not airtight and it doesn’t make sense all of the time. Why is a promise of money to my dear mother not enforceable, while a contract for a shipment of crates of filthy pornography is?
We have as a group decided that it is particularly icky to get dirt on someone and attempt to solicit money from them to keep quiet. So we have made that unenforceable. However, contract law provides no remedy to keep this from happening over and over again other than returning your $10,000 (if it would ever be found out). So, we need extra teeth by imposing criminal penalties for blackmail.
In your example, it is rare that an eavesdropper would be able to get any money by writing a book about most people. I doubt many publishers would care about the sexual liaisons of my neighbors.
The “unfortunate” celebrities are in a bad position because the 1st amendment prohibits any law prohibiting free speech or freedom of the press, even if we wanted to regulate that. But we can still protect them from blackmail. Our law doesn’t “protect” celebrities, but does protect 99.9999% of people. Can’t be perfect.
Not actually being a lawyer, I can’t answer this definitively, but I would think there’s a pretty fine line between negligence in civil liability sense, and criminal negligence. A lawyer as an advocate for a corporate client might not be expected to draw such in line, at least in non-blatant examples. Also, a lawyer might not even know all the details of the information that the agreement covers – maybe a lawyer wouldn’t even want to know in case of just such a conflict as you suppose.
And that line must be pretty fuzzy. I recall seeing some TV program about the Ford Pinto and it’s tendency to catch fire after rear impacts. According to the program, Ford knew about this before the car was ever put on sale, but they put it in the showrooms and sold it anyway. Somehow that was not determined to be criminally negligent. Go figure.