‘It takes 20 years to build a reputation and five minutes to ruin it. If you think about that, you’ll do things differently.’ As legendary business magnate Warren Buffet says, reputation is hard-won yet fragile. His remark responds to the explosion of social-media accusations of misconduct against Hollywood film mogul Harvey Weinstein, an event that has highlighted the extent to which loss of trust and confidence can seriously affect continuing survival in society or business.

In Weinstein’s case the loss of reputation was rapid and devastating following publication of personal revelations in the New York Times in October 2017. Despite his various apologies, denials and threats to sue for defamation, within days of publication there were deleterious repercussions followed by months of further damaging accusations.

The scale and extent of this fall-out is astonishing. Weinstein almost immediately took ‘leave of absence’ from The Weinstein Company and is reportedly ‘working with a therapist’. His attorney resigned as his legal representative; he was summarily sacked by the board of his company; and his wife announced she was leaving him. BAFTA in the UK and the Academy of Motion Picture Arts and Sciences in the US (the Oscars) terminated his memberships. The Producers Guild of America banned him for life. In February 2018 New York State prosecutors filed a lawsuit against The Weinstein Company claiming that the studio ‘failed to protect employees from Harvey Weinstein’s alleged harassment and abuse … at the studio for years, including making verbal threats against their lives and employing female staff as “wing women” to facilitate sexual conquests’.

The Weinstein scandal stimulated and encouraged the creation of social-media platforms for reporting and recording accusations of historical abuses suffered by people who had experienced predatory behaviour by people in positions of power (Editorial AM 414). The hashtag #MeToo initiated what has now become a worldwide movement campaigning against sexual harassment and assault generally, but especially in the workplace. #MeToo has now been translated or adapted into major languages including Arabic, Chinese, Finnish, French, Italian, Japanese, Russian and Spanish. In these ways, social-media reports of past abusive conduct have now spread into specific industries, including the art business world.

In October 2017 – the same month the Weinstein accusations were first published – Knight Landesman resigned as publisher of US art magazine Artforum following allegations of sexual harassment against him in an open letter signed by his accusers (Artnotes AM 412). Self-styled as the We Are Not Surprised (WANS) group, the letter opens as follows: ‘We are gallerists, artists, writers, editors, curators, directors, arts administrators, assistants, and interns – workers of the art world – and we have been groped, undermined, harassed, infantilised, scorned, threatened, and intimidated by those in positions of power who control access to resources and opportunities. We have held our tongues, threatened by power wielded over us and promises of institutional access and career advancement.’

Signatories included artists Coco Fusco, Helen Marten, Cindy Sherman, Lisa Yuskavage and Anicka Yi; dealers Sadie Coles and Barbara Gladstone; curator Laura Hoptman; museum directors Lisa Phillips, Suzanne Cotter, and Sarah Munro; art advisor Eleanor Cayre. Landesman’s immediate response was: ‘I fully recognise that I have tested certain boundaries, which I am working hard to correct … I have never willfuly or intentionally harmed anyone. However, I am fully engaged in seeking help to ensure that my behaviour with both friends and colleagues is above reproach in the future.’

Recent events relating to Anthony d’Offay, a leading UK former art dealer now collector and curator, further illustrate the fragility of reputation. D’Offay has been the subject of recent accusations of sexual harassment and inappropriate behaviour from work colleagues (see Jennifer Thatcher’s ‘No Surprises’ AM 414). He strongly denies these allegations, which were first revealed in the Observer newspaper in January 2018. Nevertheless, repercussions have been seriously damaging to his reputation, principally affecting the Artist Rooms programme he inaugurated.

D’Offay operated his internationally renowned London-based dealership from the late 1960s. In 2001 he ceased trading to build a personal collection of over a thousand works by internationally recognised artists, many of which in 2008 he effectively donated to the joint ownership of National Galleries Scotland and Tate as a collection branded as Artist Rooms. He was ex-officio curator of this collection and programme until December 2017, when he stepped down a few weeks before publication of the Observer’s damaging revelations.

Following the Observer’s report, Tate and National Galleries Scotland issued the following joint statement: ‘In 2008 Mr D’Offay was the donor of the Artist Rooms collection which is now owned and jointly managed by Tate and NGS. Mr D’Offay stepped down from any connection with Artist Rooms in December 2017. In light of these allegations, Tate and NGS have decided that it is appropriate to suspend any further contact with Mr D’Offay until these matters have been clarified. The work of Tate and NGS is underpinned by values of fairness, equality and respect and the right to work free of sexual harassment. We expect these values to be demonstrated in the behaviour of everyone who is involved in our organisations.’

Is there legal protection against public accusations that may be false or fake or inaccurate and which may damage reputations before they are proven to be true? These issues have also been succinctly articulated by a Hollywood actor recently accused but who strongly denies sexual misconduct allegations: ‘We have come to a time where hard-earned careers are being lost on the basis of accusations. I need to reiterate that these accusations against me are false. We have lost the presumption of innocence; we have lost due process; and we have lost the ability to review evidence – allowing the media to become both judge and jury. Until I can sit down and have a dialogue with my accusers, managed not by the press but by an impartial mediator, I have nothing further to say on this matter. My wife, family and close friends know me and my true nature and I am grateful for their love and support.’

Contemporary laws of defamation were developed through millennia by civilised societies recognising the need to prevent unjustified public accusations. Such legislation was invariably based on the expectation that fear of legal action and punishment for unjustified defamation would operate as a deterrent to society as a whole. This legislative approach served societies reasonably well in the pre-internet era when most public communications were made via physical material distributed by retailers of literature or audio-visual showings of spoken words. But the advent and use of digital media communicated via the worldwide web have exposed serious flaws in defamation laws and their worldwide enforcement.

Nowadays accusations can be published instantly worldwide, without proof or evaluation by traditional intermediaries or gatekeepers of past centuries (such as publishers and distributors of authored material); and court orders to ‘cease and desist’ or ‘take down’ are fiendishly difficult to enforce beyond the limited geographical jurisdiction of national laws. A common defence to lawsuits in modern liberal democracies is that the defamatory published material was true. Perhaps the recent social-media accusation movement will become internet society’s new way of speaking truth to power – but can it win the battle against ‘fake news’ and false or inaccurate allegations?

Next month the second part of this examination will discuss building and maintaining reputation from the artist’s perspective.

© Henry Lydiate 2018

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.