Can a Confidentiality Clause in a Casual Agreement Be Enforced?

Privacy is usually the number one concern in casual arrangements. Both people want assurance that what happens between them stays between them. So naturally, many written agreements include some version of a confidentiality clause — a promise not to share details of the arrangement with others.

But can it actually be enforced? The answer is: it depends, and probably less than you'd like.

How Confidentiality Clauses Work in General

In the business world, confidentiality clauses (often called NDAs — non-disclosure agreements) are routine and regularly enforced. They protect trade secrets, business strategies, client lists, and other sensitive information. Courts understand and respect them because they serve clear commercial purposes.

The typical elements of an enforceable confidentiality clause include:

• Clear definition of what information is considered confidential
• Specific obligations about how that information should be handled
• Reasonable scope — it can't be so broad that it covers literally everything
• Reasonable duration — it can't last forever (usually)
• Consideration — both parties must get something in exchange for the obligation
• Remedies for breach — what happens if someone violates it

The Problem with Confidentiality in Personal Arrangements

When you transplant these concepts from a business context into a casual personal arrangement, several things break down:

The Consideration Problem

In a business NDA, the consideration is clear: access to confidential business information in exchange for a promise not to disclose it. In a casual arrangement, the confidentiality clause is typically bundled with the entire arrangement. If the underlying arrangement isn't enforceable (see Why Casual Agreements Aren't Contracts), the confidentiality clause attached to it may not be either.

Workaround: Some people structure the confidentiality agreement as a standalone document, separate from the arrangement terms, with its own consideration (like a mutual promise of confidentiality). This may improve enforceability, but it's not guaranteed.

The Scope Problem

"You agree never to tell anyone anything about our arrangement" is almost certainly too broad to enforce. A court would want to know: What specific information? Told to whom? Under what circumstances? For how long?

Better approach: Define specific categories of confidential information — financial terms, personal details shared in confidence, meeting schedules, etc. — and specific restrictions on sharing them.

The Public Policy Problem

Courts are generally reluctant to enforce agreements that seem designed to conceal behavior rather than protect legitimate interests. If a confidentiality clause appears to exist primarily to prevent someone from reporting misconduct, abuse, or illegal activity, a court will likely refuse to enforce it — and may view it negatively.

The Practical Enforcement Problem

Even if a confidentiality clause is technically enforceable, what happens when someone breaks it? You'd need to:

1. Prove they disclosed confidential information
2. Show that the disclosure caused you measurable harm
3. Go to court to seek a remedy — which means exposing the very details you wanted to keep confidential

The irony is obvious: enforcing a confidentiality clause requires making everything public through the legal process.

What Confidentiality Clauses CAN Do

Despite the limitations above, including a confidentiality clause in your arrangement isn't useless. Here's what it can realistically accomplish:

1. Set Clear Expectations

The clause itself communicates that privacy matters to both people. This has psychological and social value even without legal teeth.

2. Create a Moral Obligation

Most people take written promises more seriously than verbal ones. Signing a confidentiality agreement creates a sense of commitment that informal promises don't.

3. Support Other Legal Claims

If someone shares intimate images without your consent, a written confidentiality agreement can support a revenge porn claim or harassment case. It's not the primary legal tool, but it's evidence of the expectation of privacy.

4. Potentially Enforceable for Business-Adjacent Information

If your arrangement involves someone in business — a public figure, entrepreneur, professional — and confidential business information was shared during the relationship, that portion of the confidentiality clause may be enforceable under standard NDA principles.

Writing a Better Confidentiality Clause

If you're going to include confidentiality terms in your arrangement, here's how to make them as strong as possible:

Do:

• Define specifically what's confidential (financial terms, personal information, photos, meeting details)
• Make it mutual — both parties are bound
• Set a reasonable time period (1-3 years is typical for business NDAs)
• Keep it as a separate section or even a separate document
• Include a carve-out for legal obligations (if legally compelled to disclose, you may)
• Include a carve-out for reporting abuse, illegal activity, or threats to safety

Don't:

• Use language that could be interpreted as silencing a victim of abuse
• Make it so broad that it covers public information or general knowledge
• Include punitive financial penalties that a court would find excessive
• Forget that both parties should sign and retain a copy

A Sample Confidentiality Provision

Here's a starting point — not legal advice, just a framework:

Both parties agree to keep the existence and terms of this arrangement confidential. Specifically, neither party will disclose to any third party: (a) the financial terms of the arrangement, (b) personal information shared in confidence during the arrangement, or (c) intimate photos, messages, or recordings created during the arrangement. This obligation survives the end of the arrangement for a period of two years. Nothing in this clause prevents either party from disclosing information required by law, reporting illegal activity, or seeking legal advice from a licensed attorney.

The Bottom Line

Can a confidentiality clause in a casual agreement be enforced? Sometimes, partially, and with significant practical limitations. But that doesn't mean you should skip it. The real value of a confidentiality clause lies in the conversation it sparks, the expectations it sets, and the moral weight it carries.

Think of it as a seat belt: it won't prevent every possible harm, but you're better off with one than without.

For more on what makes agreements enforceable, visit our Enforceability Basics hub. For practical advice on what happens when an arrangement ends, see Post-Arrangement Boundaries.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. The enforceability of confidentiality clauses varies significantly by jurisdiction and specific circumstances. Consult a licensed attorney for advice about your situation.