If you are stuck in such a situation, here is what to do.

Mr. Sameer, a talented professional at a burgeoning marketing firm named “Zenith Digital,” found himself in a complex situation. His company had just secured a contract with “Elegance International,” a globally recognized luxury brand. For Sameer, having Elegance International’s name and the associated project work in his portfolio would be a significant career booster, potentially leading to much higher salary offers in the future.

However, Zenith Digital presented him with a stringent Non-Disclosure Agreement (NDA). This agreement explicitly forbade him from mentioning Elegance International by name in his portfolio or during job interviews. It also prevented him from claiming credit for the work he executed or using any campaign data and achievements to build his professional credentials. Sameer felt this was deeply unfair, as it seemed to exploit his talent while legally preventing him from reaping the professional rewards of his own hard work. He questioned whether such an NDA, which severely hampers career growth, is legally valid and enforceable in India.

Advice in such cases

In India, Non-Disclosure Agreements (NDAs) are standard legal instruments used to protect a company’s confidential information, trade secrets, and client relationships. They are generally considered legally enforceable. However, their enforceability is not absolute. Indian courts review the terms of an NDA to ensure they are reasonable and not against public policy. An agreement that is excessively broad, or one that unreasonably restricts an individual’s fundamental right to practice a profession or carry on any lawful trade or business, can be challenged. The key is the balance between protecting the employer’s legitimate business interests and the employee’s right to career progression and livelihood.

Applicable Sections of Law

The legality of such NDAs is primarily governed by contract law rather than criminal statutes like the Bharatiya Nyaya Sanhita (BNS).

• The Indian Contract Act, 1872: Section 27 of this Act voids any agreement that restrains a person from exercising a lawful profession, trade, or business. While courts have upheld reasonable restrictions to protect confidential information during employment, post-employment restrictions that are overly broad and prevent an employee from using their general skills and knowledge can be struck down. An NDA that effectively gags an employee from ever mentioning their experience, even in a generic sense, could be challenged as an unreasonable restraint of trade under this section.
• The Copyright Act, 1957: Generally, under Section 17, the employer is the first owner of the copyright in any work created by an employee during the course of their employment, unless an agreement states otherwise. This means the marketing agency (Zenith Digital) legally owns the campaign materials, reports, and other “work products.” This ownership gives them the right to control how that specific material is used and distributed, including prohibiting its inclusion in a personal portfolio.

If you are the complainant

If you are in a situation like Mr. Sameer’s, you have several proactive steps you can take.

• Review your employment agreement and the proposed NDA meticulously. Pay close attention to clauses related to confidentiality, intellectual property, and post-employment restrictions.
• Attempt to negotiate the terms of the NDA with your employer. You can propose compromises, such as describing the project and your role in generic terms without naming the client or revealing sensitive data. For example, “Managed a digital marketing campaign for a leading international luxury goods company, resulting in a 40% increase in online engagement.”
• Consult with a Lawyer: The very basic and important step to start is to talk to a Lawyer/advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved in 7-10 days.
• Maintain a written record of all discussions and correspondence with your employer regarding the NDA. This documentation can be crucial if a dispute arises later.

If you are the victim

If you have already signed such an NDA and feel it is unfairly restricting your career, your options are more nuanced but still exist.

• Breaching the NDA by using the client’s name or work can expose you to a lawsuit for damages from your former employer. Therefore, acting unilaterally is risky.
• Your best course of action is to seek legal counsel to assess the enforceability of the specific clauses in your NDA. A lawyer can advise you on whether the restrictions are likely to be considered unreasonable by a court.
• You can still leverage your experience. Focus on describing the skills you developed, the challenges you overcame, and the processes you mastered without mentioning the client’s name or confidential project details. This is a safe way to showcase your capabilities to potential new employers.

How the police behave in such cases

This is a civil matter, not a criminal one. The police have no jurisdiction over disputes arising from employment contracts or NDAs. Such issues are resolved through civil courts, mediation, or arbitration as stipulated in the agreement. Police would only become involved if there were allegations of a criminal offense, such as theft of company property (like a laptop with data) or criminal breach of trust, which is distinct from a simple contractual disagreement over portfolio rights.

FAQs people normally have

• Is it always illegal for an employer to restrict portfolio use?
  No, it is not always illegal. Employers have a legitimate right to protect their clients’ confidentiality and their own intellectual property. Restricting the use of specific, sensitive work in a portfolio is often legally permissible. The issue arises when the restriction is so broad that it prevents you from describing your experience in any meaningful way.
• Can I talk about my work at all?
  Yes. An NDA cannot prevent you from talking about your general skills and experience. You can discuss the type of work you did, the industry of the client (e.g., “a major e-commerce platform”), and the results in generalized terms (e.g., “improved user acquisition by X%”). You must avoid revealing confidential information, which includes the client’s name if specified, trade secrets, or non-public data.
• What makes an NDA clause “unreasonable”?
  A clause may be deemed unreasonable if it has an unlimited duration, an overly broad scope of what is considered “confidential,” or if its primary purpose is not to protect legitimate business interests but to stifle an employee’s ability to find future work.

What evidence is required?

If you decide to challenge an NDA or need to defend yourself against an alleged breach, the following documents are crucial:

• The signed employment contract.
• The Non-Disclosure Agreement (NDA) itself.
• Any email correspondence or other written communication with your employer regarding the project and the NDA.
• A copy of the work or portfolio content in question.
• Any company handbooks or policies regarding confidentiality and intellectual property.

How long will the investigation take?

Since this is a civil dispute, there is no “investigation” in the criminal sense. The timeline for resolution depends on the path taken. Direct negotiation with the employer could resolve the issue in a few weeks. If the matter proceeds to a civil court, the process can be lengthy, potentially taking several months to years to reach a final judgment, depending on the court’s caseload and the complexities of the case. An advocate can provide a more precise timeline based on the chosen legal strategy.

Advocate Sudhir Rao, Supreme Court of India