NDA and Confidentiality Clauses in Influencer Contracts

An NDA (non-disclosure agreement) or an embedded confidentiality clause protects information an influencer gets access to before it's public — typically an unreleased product, a price, a campaign strategy, or another creator's fee. It can stand as a separate agreement, signed before the actual collaboration agreement, or as one term inside the ordinary contract. Without it, the brand has no written basis to respond if the information gets shared too early.

This is practical guidance from Make Influence, not legal advice. Have the actual clause wording, and any trade-secret assessment, reviewed by a lawyer.

Standalone NDA or embedded confidentiality clause?

Most collaborations get by with one line inside the ordinary contract — the contract checklist lists "governing law and confidentiality" as one of 12 terms, but only in a single line. A standalone NDA becomes relevant once a brand needs to share sensitive information before the collaboration agreement itself is in place — typically because the influencer needs to be briefed on an unreleased product to decide whether the collaboration is even relevant to them.

Form	Signed	Typically used for
Clause embedded in the main contract	Alongside the rest of the agreement	Ordinary collaborations, where fee, campaign strategy and any product details are only shared once the agreement is in place
Standalone NDA	Before the main contract, often before price negotiation	Pre-launch product briefings, where the influencer needs to see or hear about the product to say yes — without having signed the collaboration itself yet

What does the clause actually need to protect?

A confidentiality clause worded too broadly ("everything you hear from us is confidential") is hard to enforce, because nobody can reliably remember what was actually said when. Write down concretely what's covered instead:

• Product details — name, features, launch date, before they're publicly announced
• Price and commercial terms — fee amount, commission rate, discount codes before they go live
• Campaign strategy and creative concepts — briefing materials, moodboards, planned ad formats
• Other creators' names and fees, if the influencer gets visibility into who else the brand is working with, and on what terms
• Physical material — samples, prototypes or footage the brand itself has shot and shared for the briefing

The legal backdrop: a trade secret isn't the same thing as "confidential"

The EU Trade Secrets Directive (2016/943) and Denmark's own implementing Act on Trade Secrets (LOV nr. 309 of 25 April 2018, in force from 9 June 2018, retsinformation.dk) only protect information as a genuine trade secret if it meets three requirements at once: it's secret (not generally known within the industry), it has commercial value because it's secret, and its holder has taken reasonable steps to keep it secret. A signed NDA is exactly the kind of reasonable step the law expects — without a written agreement, the brand is in a weaker position if it ever has to prove the information was actually treated as confidential.

But not everything a brand wants kept quiet meets the legal definition of a trade secret — a campaign strategy or a fee amount typically doesn't have independent commercial value in the way a formula or a customer list does. That's exactly why a contractual confidentiality clause is broader and more useful in practice than relying on the statute alone: the clause covers whatever the parties agree to, whether or not it would actually hold up as a trade-secret claim.

The five elements the clause needs to address

Element	What it fixes
Definition of confidential information	Concretely what's covered — see the list above, not a generic statement
Exceptions	Information that's already public, that the influencer already knew independently, or that must be disclosed by law (e.g. to an authority) isn't covered
Duration	How long the obligation lasts — see the next section
Return or destruction	What happens to physical samples, files or notes when the collaboration ends or never happens
Consequence of breach	What the brand can claim if the influencer shares the information too early — see the enforcement section below

How long should the clause run?

There's no statutory or official industry standard for duration — most sources that quote specific figures are generic legal-content sites with no disclosed methodology. Treat the numbers below as commonly reported reference points, not fact:

Situation	Commonly reported duration
Pre-launch product briefing (embargo)	From the briefing until the public launch date — often just weeks
General business information (strategy, pricing)	1-5 years after the collaboration ends
A genuine trade secret (e.g. a unique production process)	Can in principle run for as long as the information is actually kept secret — not time-limited by itself

An NDA that binds the influencer to silence forever, with no natural expiry date, is a red flag more than a strength — an unreasonably long or unlimited duration is also easier to challenge if it's ever tested in court, see the next section.

Enforcement in Denmark: the Trade Secrets Act and Section 36 of the Contracts Act

If the information genuinely meets the three-part test above, Denmark's Act on Trade Secrets provides independent remedies — including an injunction against further use and damages — regardless of whether a signed NDA exists. If the information isn't a legal trade secret, the brand falls back on ordinary contract law: a written clause is binding as a starting point, because the parties have freedom of contract.

If the clause sets a fixed penalty for breach (a stipulated damages/liquidated-damages figure), the same caveat applies as with kill fee clauses: Section 36 of the Danish Contracts Act (aftaleloven, consolidated act LBK no. 193 of 2 March 2016, retsinformation.dk) lets a court set aside or reduce an unreasonable compensation clause. A flat penalty that far exceeds the brand's actual loss from a specific breach sits on weaker ground if it's ever tested than a rate that's genuinely proportionate to the damage.

Two common scenarios

Pre-launch product briefing

The brand wants to show the influencer a product before it's publicly announced, so the influencer can produce content that goes live exactly when the embargo lifts. A standalone NDA is typically the right tool here, because the influencer needs to see the product before they've even agreed to the collaboration — and because the cost of an early leak (lost exclusivity, competitors reacting in time) is highest exactly in this scenario.

Press trips and unboxing unreleased content

If the influencer gets access to unannounced content during a press trip or an unboxing package, the same logic applies — but here an embedded clause in the main agreement is usually sufficient, because the main agreement has to be signed anyway before the trip happens or the package ships.

Decision framework: do you need a standalone NDA?

IF the influencer needs to see or hear about an unreleased product before agreeing to the collaboration → use a standalone NDA, signed before the briefing.

IF all confidential information is only shared after the main contract is signed → an embedded clause in the main contract is sufficient.

IF the information genuinely meets the trade-secret test (secret, commercial value, reasonable steps taken) → state that explicitly in the clause, so the Trade Secrets Act can also be invoked on a breach.

IF the collaboration only involves an already-public product and an ordinary campaign brief → a full NDA is typically overkill; the ordinary contract's confidentiality line is enough.

Worked example (hypothetical)

The numbers below are a made-up worked example to illustrate the point — not a real customer case, and not rates Make Influence uses or recommends.

A brand briefs 5 creators on an unreleased product 10 days before the embargo lifts, at a fee of DKK 5,000 each (DKK 25,000 total). The NDA sets a flat penalty of DKK 20,000 per creator for a breach. One creator posts 3 days early. Using an illustrative (not documented) estimate of DKK 5,000 in lost exclusivity value per day the product is public early, the estimated actual loss lands at 3 × DKK 5,000 = DKK 15,000 — below the flat DKK 20,000 penalty. A court applying Section 36 of the Contracts Act could, in this specific case, view the flat penalty as disproportionate to the actual loss. A tiered penalty (e.g. scaled to days early) is therefore typically on stronger footing than a single flat rate, whatever the timing of the breach.

Common mistakes

• Using a generic template without specifying what's actually confidential. "Everything is secret" is hard to enforce and hard for the influencer to comply with in practice.
• Forgetting an expiry date. An NDA with no duration is both a red flag for the influencer and weaker if it's ever tested.
• Setting a flat penalty regardless of how close to the embargo the breach happens. See the worked example above.
• Using a standalone NDA where a single line in the main contract would have been enough. It adds unnecessary friction to a collaboration that doesn't actually need it.
• Not stating what happens to physical product samples after the briefing. Without that term, the material often ends up staying with the influencer with no clear agreement about it.

Make Influence's operational perspective

Most of Make Influence's own collaborations are built around a public, trackable link or a discount code, not a confidential pre-launch briefing — so a standalone NDA is rarely relevant to our core model. When a pre-launch briefing does come up, our experience is that the simplest solution is usually the best one: a short, specific clause naming what's confidential and until when, rather than a long generic template nobody actually reads.

An NDA is one of several standalone contract-clause deep dives on the Academy alongside the main contract checklist — see also non-solicitation and no-poach clauses in influencer contracts for a clause that protects business relationships rather than information.

FAQ

Can an NDA be enforced even if the information isn't a legal trade secret?

Yes. A written agreement is binding as a starting point under ordinary contract law, whether or not the information also meets the narrower legal definition of a trade secret. The Trade Secrets Act adds extra remedies on top — it isn't a precondition for the clause to apply at all.

Does an NDA always need to be a separate document?

No. Most collaborations get by with a confidentiality clause inside the ordinary contract. A standalone NDA only makes sense once confidential information needs to be shared before the main agreement is signed.

Can an influencer refuse to sign an NDA?

Yes, like any other contract term. If they refuse, the brand can choose not to share the confidential information, or find a different creator.

Does an NDA also cover an influencer mentioning that a collaboration exists — not just the product details?

Only if it's worded that way. Most NDAs protect specific information (product details, price, date), not the general fact that a collaboration is happening — that has to be stated explicitly if the brand also wants the collaboration itself kept quiet.

Is a verbal confidentiality agreement binding?

It can be under ordinary contract law, but it's far harder to prove and enforce than a written clause — particularly if the matter is ever tested in court.