Microsoft Uses the NDA to Control Sidewalk Coverage

By: Steve Outing

At the Newspaper Association of America's Connections new media conference in San Francisco last weekend, Bill Gates- and Microsoft-bashing was in full swing -- particularly over the software giant's Sidewalk online city entertainment guide venture, which looks to be a serious competitive threat to the newspaper industry.

If Microsoft feels like it's being picked on, however, it might look to its own actions in media relations regarding Sidewalk. Reporters covering the interactive media industry often are stymied from finding out much of substance about Microsoft's Sidewalk plans. The company has generally been secretive about the development of the various local Sidewalk units -- up until the official launch date, when Microsoft and its public relations agencies try to orchestrate substantial, mass media coverage of the event.

Further, Microsoft sometimes tries to exert control over reporters by having them sign non-disclosure agreements (NDAs), which prohibit a journalist from writing about information given out during pre-launch interviews with company executives until the official Microsoft launch date for a particular product or service. To be fair, this is a fairly common ploy among software and technology companies to try and control the timing of independent media coverage of their wares.

Predictably, the Microsoft NDAs are unpopular among reporters, although some who cover the industry sign them anyway -- feeling forced to do so in order to get information out of the company about technologies or services still under development and stay on top of their beats. Some reporters steadfastly refuse to sign any NDA.

No NDA, no interviews

The NDA issue popped up recently for Jim Romenesko, a technology writer for the St. Paul (Minnesota) Pioneer-Press, who set up a trip to Seattle to interview executives of Sidewalk. He planned to write articles about Sidewalk's launch in the Twin Cities, and expected to have a piece ready to run in the newspaper one or two days prior to the Twin Cities Sidewalk launch. He says he told Microsoft representatives in advance that his plan was to write prior to the actual launch date.

A day before his scheduled flight to Seattle, however, a representative of Sidewalk PR agency Shandwick USA called to say that Romenesko would have to sign an NDA that would prohibit the reporter from publishing any information that Sidewalk executives told him prior to Sidewalk's "embargo" date. Romenesko said he would not sign it, and he offered to do the interviews "off the record," but the pre-arranged interviews were cancelled.

What Romenesko objected to most about the NDA presented by Microsoft was a clause that said that he could report on information learned during an official Microsoft interview only if he got the same information from another independent source -- but he would have to prove to Microsoft that he got the information from a non-Microsoft source, or presumably be liable for breaching the terms of the NDA if the information was published before the official Microsoft launch.

Microsoft, says Romenesko, is actively discouraging independent reporting by journalists, preferring to orchestrate press coverage. "I see it as another part of their strategy to control reporters," he says.

Romenesko and Microsoft's public relations representatives were able to work out a compromise, and the interviews were rescheduled without forcing the writer to sign the NDA. However, Romenesko says that in his meetings with top Sidewalk executive Frank Schott and Seattle Sidewalk general manager Kevin Egan, they "talked in generalities" and could not specifically discuss Twin Cities Sidewalk.

Romenesko did produce coverage of Twin Cities Sidewalk before the official Microsoft launch date. He says he visited the Twin Cities office closer to the launch date, where the top editorial manager (the "executive producer") is, ironically, David Fryxell, formerly the technology editor at the Pioneer-Press. "I did end up getting the dog and pony show," Romenesko says.

Gayle Troberman, Microsoft's consumer marketing manager and who handles public relations for Sidewalk, says that the company policy is to try to give all reporters an equal shot at covering a particular Microsoft development. Romenesko wanted to get an advance look at Twin Cities Sidewalk, while the Sidewalk staff "wanted to give everyone the story at the same time," Troberman says. The issue is being fair to all reporters and not favoring any particular journalists, she says.

Twin Cities Sidewalk is competitive with the Pioneer-Press' Web service, so the appearance might be that Microsoft didn't want to give any inside information to a competitor. But "that's not it at all," says Troberman; it's strictly an issue of being fair to everyone in the media and not allowing one media outlet to scoop another about a Microsoft news item.

Microsoft corporate PR executive Greg Shaw defends the use of NDAs for journalists, saying that it is common throughout the software and other industries -- and allows reporters to learn about upcoming technological trends, stay on top of their areas of coverage, and protects Microsoft's need to keep confidential information out of the press in a competitive atmosphere. He says that Microsoft in general requires NDAs of reporters on an ad hoc basis, with a new piece of technology likely to require one while an upgrade to existing product not.

Reporters' scourge?

Shaw gives the impression that NDAs are a non-issue, but an informal poll of business reporters and editors found a combination of disdain for and resignation about NDAs. "It's a scourge on the industry," commented one technology reporter for a large U.S. daily who periodically covers Microsoft; she says she refuses to sign them. Rather, she is willing to agree verbally to an embargo on information. But companies like Microsoft sometimes insist on a signed piece of paper.

Particularly troubling to some reporters is the idea of signing an NDA that restricts when they can publish information, then seeing a competitor scoop them on the same story. Having signed an NDA, they are forced to hold on to their information even after it's been published elsewhere.

Mark Watanabe, personal technology editor for the Seattle Times, says NDAs "are a fact of life when you cover technology." The Times deals with them on a case by case basis, and often tries to negotiate with a company if its NDA is too restrictive.

Pimm Fox, former business editor of the San Francisco Chronicle and business magazine editor, says he told his reporters they could do what they want, but he strongly encouraged them to refuse to sign NDAs. "I think they're terrible. ... They're a major contributing factor to the ruining of (business) journalism," he says.

Fox is disturbed that some journalists play into the game. "It's all free advertising for the companies, and everyone knows it. ... It doubles as journalism, but it's all an ad," he says. When a company launches a product, the press writes the same story on the same day, en masse, because the companies are controlling the coverage.

The NDAs generally are required for information about product announcements, "not anything strategic. Nine times out of 10 it's not real news," Fox says. Yet the companies pushing NDAs on reporters feel the need to control when coverage of their products and services is presented to the public.

Fox says the attitude that a reporter should take is to refuse to sign an NDA and decide, "I'm going to write the story anyway. ... That may mean you don't get the official quote from the senior vice president -- but, so what?"

NAA New Media Federation appointments

The Newspaper Association of America's New Media Federation named its new officers at last weekend's Connections conference. President is Howard Finberg, director of information technologies for Phoenix Newspapers. First vice president is Peter Levitan, president of New Jersey Online. And second vice president is Lincoln Milstein, vice president of new media for the Boston Globe.

Steve

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This column is written by Steve Outing exclusively for Editor & Publisher Interactive three days a week. News, tips, and other communications may be sent to Mr. Outing at steve@planetarynews.com

The views expressed in the above column do not necessarily represent the views of the Editor & Publisher company