# What is the legal distinction between blackmail (for silence) and confidentiality agreements? **URL:** \ **Category:** Factual Questions\ **Created:** [January 9, 2012, 5:13pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937 "2012-01-09T17:13:32Z")\ **Posts on this page:** 7\ **Page:** 2
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [January 9, 2012, 7:05pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/21 "2012-01-09T19:05:22Z")
> [@jtgain](#): > > 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. 🙂 Then maybe a better way of asking the question is: assuming the same facts and knowledge and people, is there a way to dress it all up so it is no longer blackmail? What if there is a written agreement, with penalties for disclosure, etc.? What arguments can a prosecutor make that a confidentiality agreement is a sham as a cover for criminal blackmail? There must be certain elements to the situation that can distinguish a crime from a contract. Even if it turns out the contract is void because it is contrary to public policy, it doesn’t necessarily make agreeing to that contract a criminal act. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 9, 2012, 7:20pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/22 "2012-01-09T19:20:00Z")
> [@Boyo\_Jim](#): > > Then maybe a better way of asking the question is: assuming the same facts and knowledge and people, is there a way to dress it all up so it is no longer blackmail? What if there is a written agreement, with penalties for disclosure, etc.? > > What arguments can a prosecutor make that a confidentiality agreement is a sham as a cover for criminal blackmail? There must be certain elements to the situation that can distinguish a crime from a contract. Even if it turns out the contract is void because it is contrary to public policy, it doesn’t necessarily make agreeing to that contract a criminal act. Good question. I would have to pull some cites to see what the elements of the crime are that would make something blackmail, and then you would have to try to shoehorn (or not) the actions into the statute to make the prosecution stick.. I believe at the federal level, it is only criminal if you blackmail someone over something which would be a federal crime. State statutes differ. Hey, that’s why lawyers get paid the money to fit a breach of contract into a blackmail charge or vice versa. 🙂 ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [January 9, 2012, 7:26pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/23 "2012-01-09T19:26:11Z")
[QUOTE=jtgain] I believe at the federal level, it is only criminal if you blackmail someone over something which would be a federal crime. State statutes differ. [/QUOTE] Federal crimes often contain a federal element, such as “whoever in interstate or foreign commerce or special maritime jurisdiction”, etc. But state blackmail that contains such federal element may and probably does fall under any such federal blackmail/extortion statute, did not check. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [January 9, 2012, 7:26pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/24 "2012-01-09T19:26:57Z")
IIRC, blackmail is demanding money to keep silent, a form of extortion. If the one proferring the money is the instigator, how can it be backmail? It’s more like bribery. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [January 9, 2012, 7:29pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/25 "2012-01-09T19:29:37Z")
For example, West Virginia’s Blackmail/Extortion Law: [QUOTE=WV Code 61-2-13] If any person threaten injury to the character, person or property of another person, or to the character, person or property of his wife or child, or to accuse him or them of any offense, and thereby extort money, pecuniary benefit, or any bond, note or other evidence of debt, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than five years. And if any person make such threat of injury or accusation of an offense as herein set forth, but fail thereby to extort money, pecuniary benefit, or any bond, note or other evidence of debt, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not less than two nor more than twelve months and fined not less than fifty nor more than five hundred dollars. [/QUOTE] So could the neighbor and the cheating husband write a “Confidentiality Agreement” and not make it blackmail? If I was on the jury, I would wonder why in the hell the neighbor was even involved in this whole thing if not to commit the above offense. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [January 9, 2012, 7:33pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/26 "2012-01-09T19:33:12Z")
And of course, one question always leads to another… Suppose I discover some criminal activity by my employer. There is no confidentiality agreement in place (though another interesting question is whether such an agreement would preclude me from reporting a crime to law enforcement). I annoumce I am going to quit and go to the media and the police. My employer offers me a million dollars to keep quiet – I haven’t asked for anything, the initiative was all on their side. Have they committed a crime by making the offer? Have I committed a crime if I accept it? If there is a crime on either side, is it at all related to “blackmail”? I could ask the same question about my cheating neighbor. If he notices I see him with the other woman, and he spontaneously offers me money to keep my mouth shut, have either of us committed a crime after money changes hands? ---
**Author:** ![GiantRat](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@GiantRat](https://boards.straightdope.com/u/GiantRat)\ **Post date:** [January 10, 2012, 3:28pm UTC](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937/27 "2012-01-10T15:28:00Z")
Worth considering, I think, is the temporal basis of the agreement. Blackmail is typically an _ex post facto_ agreement (or attempted agreement). Confidentiality agreements (in business dealings, more often called Non-Disclosure Agreements, or NDAs), are an up-front statement that works to protect one member of a relationship. NDA: “If you catch me cheating on my wife, you contractually agree not to tell her or anyone else.” Blackmail: “I caught you cheating on your wife (past tense). If you don’t give me $10k, I’ll tell her and anyone else who will listen. And you’ll lose your ass in court when she takes every dime from you.” One of my top 5 questions when reviewing contracts for my employer is whether there is an NDA clause involved (and, generally, there should be). I’ve never asked about a blackmail clause… although perhaps I should! [Previous page](https://boards.straightdope.com/t/what-is-the-legal-distinction-between-blackmail-for-silence-and-confidentiality-agreements/608937.md?page=1)