Confidentiality Provisions When Hiring a Freelancer on Upwork
When you hire a freelancer on Upwork, several confidentiality provisions govern the relationship and the work product. Understanding these provisions is crucial for both clients and freelancers to maintain a successful and legally compliant working relationship.
Upwork User Agreement Section 3.3
The foundation of Upwork’s confidentiality provisions is found in Section 3.3 of the User Agreement titled “Confidential Information.” This section states that users can agree to their own confidentiality terms, but if they do not, the terms in this section will apply.
According to these terms, users are obligated to keep other users’ confidential information a secret. Any user receiving Confidential Information from another must take reasonable steps to protect that information. Confidential Information, as defined by Upwork, covers material or information provided to evaluate a project, or the suitability of another user for the project, or provided in connection with a project. This includes information in tangible, electronic, verbal, graphic, visual, or other forms.
However, there are exceptions to what constitutes Confidential Information. Material or information that is already known by third parties, lawfully received without restriction, already known by the user prior to receiving it from the other party, or independently developed by the user without using another person’s Confidential Information, is not considered Confidential Information.
Optional Service Contract Terms
In addition to Section 3.3 of the User Agreement, Section 7 of the Optional Service Contract Terms provides further details on the confidentiality obligations. These terms apply if users enter into a Service Contract on the Site with another user and have not agreed to different terms.
A “Service Contract” on Upwork refers to the contractual provisions between a client and a freelancer that govern the services to be performed by the freelancer for the client. It is automatically formed when a client hires a freelancer on the platform and both parties agree on the terms of the job.
The term “Service Contract” does not refer to a separate custom contract that you might offer a freelancer. However, users on Upwork are free to agree to different or additional terms for their Service Contracts, as long as they do not violate Upwork’s Terms of Service. For example, you and a freelancer might agree to certain deliverables, deadlines, or payment terms that are specific to your project.
Note that any additional agreements made outside of Upwork’s platform are not monitored or enforced by Upwork. Therefore, it’s generally a good idea to keep all communication and agreements on the platform to ensure the protection and support that Upwork provides.
According to Section 7, if a client or freelancer provides Confidential Information to the other, the recipient is obligated to protect the secrecy of the information with the same degree of care as it uses to protect its own Confidential Information. The recipient should not disclose or permit others to disclose another’s Confidential Information to anyone without first obtaining the express written consent of the owner of the Confidential Information. The recipient should also not use or permit the use of another’s Confidential Information, except as necessary for the performance of Freelancer Services.
When Confidential Information is no longer needed for the performance of the Freelancer Services, or at the written request of the client or freelancer, the party that received the Confidential Information must promptly destroy or return it. The party that received Confidential Information is also required to provide written certification of compliance with this requirement within ten days after the receipt of the disclosing party’s written request for such certification.
The Optional Service Contract Terms also provide for immunity from prosecution or civil action under the Defend Trade Secrets Act for disclosures of information made in confidence to a government official or an attorney for the purpose of reporting or investigating a suspected violation of law, or made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Attorney-Client Privilege
It’s important to note that when hiring a lawyer on Upwork, the lawyer is bound by the law of attorney-client privilege, which is a legal principle protecting communications between an attorney and his or her client. This means that the attorney cannot disclose any confidential information pertaining to the client without the client’s consent. This professional obligation reinforces the confidentiality provisions in the Upwork User Agreement and Optional Service Contract Terms.
Is Signing a Separate NDA Necessary?
Given the confidentiality provisions in the Upwork User Agreement and Optional Service Contract Terms, it might seem redundant to sign a separate Non-Disclosure Agreement (NDA) with an Upwork freelancer. It is true that these provisions provide a solid foundation for protecting confidential information. However, signing a separate NDA can have several advantages.
Firstly, an NDA can be tailored to the specific needs of your project, providing more detailed and specific protection than the general terms in the Upwork User Agreement and Optional Service Contract Terms. Secondly, an NDA can include additional provisions not covered by the Upwork terms, such as non-compete or non-solicitation clauses. Finally, having a separate NDA can give you additional legal remedies in case of a breach of confidentiality, such as the ability to seek damages in court.
Remember, though, that any separate NDA or other agreement cannot alter the rights or responsibilities of Upwork or Upwork Escrow, or agree to any terms that would violate the Terms of Service.
Conclusion
Confidentiality is a crucial aspect of any working relationship, especially in the freelance world where sensitive information is often shared. Both clients and freelancers on Upwork should be aware of the confidentiality provisions in the User Agreement and Optional Service Contract Terms, and consider whether a separate NDA might be beneficial for their specific situation. It’s always a good idea to consult with a legal professional if you have any doubts or need advice tailored to your specific situation.
Please refer to the Upwork User Agreement Section 3.3 and Optional Service Contract Terms Section 7 for detailed information.
FAQ
Q: What is the confidentiality provision in Upwork’s User Agreement?
A: Upwork’s User Agreement, specifically Section 3.3, allows users to agree to their own confidentiality terms. If they do not agree to their own terms, then a standard confidentiality clause applies. This clause requires users to keep other users’ confidential information secret. This provision applies to all information exchanged for the purpose of evaluating whether to enter into a service contract, even if such contract is never agreed to.
Q: What does “confidential information” mean according to Upwork’s User Agreement?
A: According to Upwork, “confidential information” is broadly defined to include any material or information provided to evaluate a project or the suitability of another user for the project. It also includes information provided in connection with a project, regardless of its form – tangible, electronic, verbal, etc.
Q: How does the attorney-client privilege apply when hiring a lawyer on Upwork?
A: When hiring a lawyer, confidentiality is not only a contractual obligation but also a legal one. Lawyers are bound by the attorney-client privilege, which is a legal privilege that protects communications between a lawyer and their client. This privilege ensures that lawyers cannot disclose their clients’ secrets. Therefore, when hiring a lawyer on Upwork, you are doubly protected – first, by the confidentiality terms of Upwork, and second, by the attorney-client privilege.
Q: Is it necessary to sign a separate Non-Disclosure Agreement (NDA) when hiring a freelancer on Upwork?
A: Given the robust confidentiality protections already in place on Upwork and the additional legal obligation imposed on lawyers, it is usually not necessary to sign a separate NDA with an Upwork freelancer. However, in certain situations where there are specific confidentiality requirements that are not covered by the standard Upwork terms or attorney-client privilege, a separate NDA might be appropriate.
Q: How is confidential information protected during the evaluation phase of a project on Upwork?
A: Upwork’s confidentiality clause applies even during the evaluation phase of a project. All information exchanged for the purpose of evaluating whether to enter into a service contract is protected under this provision, even if such a contract is never agreed to.
Q: What happens to confidential information after a project on Upwork is completed?
A: According to Upwork’s User Agreement, if requested in writing, the recipient of confidential information must promptly destroy or return the confidential information and any copies of it contained in or on its premises, systems, or any other equipment under its control.
Q: Are all communications between a lawyer and client on Upwork protected by attorney-client privilege?
A: Generally, yes. The attorney-client privilege applies to communications between a lawyer and their client for the purpose of seeking or providing legal advice. However, not all communications may be covered, especially if they don’t pertain to legal advice or if the communication is shared with a third party.
Q: Can I request a freelancer to sign a separate NDA even if it’s not necessary?
A: Yes, while it’s typically not necessary given the robust confidentiality protections already in place on Upwork and the additional legal obligation imposed on lawyers, clients can still request freelancers, including lawyers, to sign a separate NDA if they feel it’s appropriate for their situation. It’s important, however, to ensure that the terms of the separate NDA don’t conflict with the terms of Upwork’s User Agreement.
Q: What does Upwork mean by “reasonable steps” to keep information confidential?
A: While Upwork’s User Agreement does not explicitly define “reasonable steps”, it generally refers to actions that a prudent person would take under similar circumstances to protect confidential information. This could include measures such as storing the information securely, not sharing the information with unauthorized individuals, and not using the information for any purpose other than what’s agreed upon.
Q: What if a freelancer violates the confidentiality agreement on Upwork?
A: Violation of the confidentiality agreement on Upwork could lead to various consequences. The violating party could face account suspension or termination. Additionally, the other party could potentially take legal action for breach of contract, depending on the severity and impact of the violation.
Q: How does attorney-client privilege on Upwork differ from confidentiality under Upwork’s User Agreement?
A: While both confidentiality under Upwork’s User Agreement and attorney-client privilege aim to protect sensitive information, they operate under different frameworks. Confidentiality under Upwork’s User Agreement is a contractual obligation that applies to all users, regardless of their role. Attorney-client privilege, on the other hand, is a legal principle that specifically protects communications between attorneys and their clients for the purpose of seeking or providing legal advice.
Q: Can the attorney-client privilege be waived on Upwork?
A: Yes, just like in any other context, attorney-client privilege can be waived on Upwork. This typically happens when the client discloses privileged information to a third party or when the client and attorney agree to waive the privilege. However, it’s important to note that once waived, attorney-client privilege cannot be reclaimed for the disclosed information.
Q: What is considered “generally known” information that is not classified as confidential under Upwork’s agreement?
A: Information that is widely known to the public or within an industry and not due to a breach of confidentiality is considered “generally known.” This information is not considered confidential under Upwork’s User Agreement.
Q: What if the freelancer I hired on Upwork is based in a different country? Does the confidentiality agreement still apply?
A: Yes, the confidentiality provisions in Upwork’s User Agreement apply regardless of the freelancer’s location. However, enforcement of these provisions can be more challenging across international borders, and local laws may also apply.
Q: What steps can I take as a client to ensure my confidential information is protected when hiring a freelancer on Upwork?
A: Beyond relying on Upwork’s User Agreement, you can also take additional steps such as: clearly defining what information is confidential, limiting the amount of confidential information shared to what is necessary, and if warranted, requesting freelancers to sign a separate NDA.
Q: What happens if a lawyer violates attorney-client privilege on Upwork?
A: Violation of attorney-client privilege is a serious ethical breach. If a lawyer violates this privilege on Upwork, they could face disciplinary action from their state bar association, which could include fines, suspension, or even disbarment. The client could also potentially sue the lawyer for damages.
Q: What can I do if a confidentiality agreement is violated on Upwork?
A: If a confidentiality agreement is violated, it’s crucial to first try to resolve the issue directly with the other party involved. If you’re unable to reach a resolution, you can submit a dispute through Upwork. The platform will then review the case and, if necessary, mediate between the parties. If the dispute is still not resolved, it can be escalated to arbitration, a more formal process where an independent third party reviews the case and makes a decision on how to resolve the dispute