Introduction
It has been six years since the #MeToo movement gained global prominence following public allegations of sexual harassment and abuse against Hollywood producer Harvey Weinstein, who was subsequently charged and found guilty of several counts of rape and sexual assault in both the U.S. and the UK between 2020 and 2022.1
In the six years post #MeToo we have seen and continue to see, a number of other prominent entertainment figures, media broadcasters, and agencies make headlines where similar allegations have been reported, with some alleged behaviour spanning decades.
In July 2017, a survey from the U.S. Center for Talent and Innovation (now Coqual) think tank reported that the media and entertainment industry had higher volumes of reports of workplace sexual harassment compared with other sectors.2 In November 2020, the International Labor Organization in the U.S. published a study on sexual harassment in the entertainment industry reporting that, while sexual harassment affects all sectors of economic activity, “the way the industry is organized, its organizational culture and the diverse employment relationships, may affect its capacity to prevent, address and eliminate sexual harassment and other forms of violence and harassment.”3 This October in the UK, a study conducted by the University of York further states that “sexual harassment and abuse is still occurring in the industry despite the #MeToo movement and that some reports are being covered up, with staff exposed to further discrimination” based on research interviews with 18 people who experienced and/or reported sexual harassment and violence in the industry.4
For a sector in constant public focus and with demanding social aspects, managing the risk of sexual misconduct can be increasingly challenging, especially when reports involve high-profile individuals and celebrities. When allegations are made public, the reputational aftermath can be significant for media and entertainment organisations, risking the loss of sponsors, promoters, and target audiences.
So how can media and entertainment organisations better manage the conduct of employees, associates, ambassadors, and representatives, and what needs to be considered in implementing positive working cultures in the industry?
The Industry
There are various components unique to the operations and overall business model observed in the media and entertainment sector which creates increased exposure to conduct related risks when compared with corporate organisations.
- The world of media and entertainment holds a specific status in society. Public in its nature, the industry is perceived as prolific and high stakes and fuelled by relationships. The established status held by some of the key players in the industry and the precarious freelance status held by others is an inherent power imbalance among stakeholders. This creates a higher risk of exploitation and is particularly prevalent for individuals in the early stages of their careers, where success, visibility, and influence are controlled by a powerful minority of players.
- More so than other business structures, the industry is known for its fast-moving social scenes and parties which blur the lines between work and personal life, in turn creating issues in individual behaviour and what is deemed to be appropriate.
- For a sector where publicity is used as a common business tool, the weaponisation of public relations to slander or leak identities of reporters to victimise or retaliate against people speaking up about harassment can create further reputational and legal risks, as well as encourage problematic cultures. The nature of conduct allegations, including sexual harassment more often relies heavily on testimony, which can be used as an advantage for those wanting to cover up serious misbehaviours.
- In addition, the industry has been known in the past for abusing the use of non-disclosure agreements creating a long-standing culture of silence when alleged harassment and abuse has been reported. In 2022, the Speak Out Act was passed in the U.S. which prohibits the enforcement of pre-dispute nondisclosure and non-disparagement clauses related to sexual assault and harassment disputes.5 Although only passed very recently, this demonstrates a cultural change in the push for investigation into such behaviours.
- Another sector nuance is the prominence of individuals over agencies or organisations which is the reverse in other sectors where individuals might be shielded by corporate structures. This can create false security in how organisations in the media and entertainment business manage reports of harassment and abuse by merely ousting the individual(s) and not addressing deep-seated cultural concerns.
Recent Trends and Associated Risks
Historic Cases
Public litigation and settlements involving some of the industry’s most famous names, including Harvey Weinstein,6 Roger Ailes,7 Jimmy Savile,8 Max Clifford,9 and Bill Cosby10 show how deep the roots of harassment and abuse behaviours go and how difficult they are to unearth. It is, therefore, not surprising that historical cases continue to come to light years later. As we have observed in these examples and others, the number of reporters coming forward increases as more media attention is focused on harassment and abuse, even if the alleged events took place decades prior.
This can inundate organisations with historic reports and create resourcing pressures, particularly where allegations have been reported publicly. To manage the reputational fallout, organisations need to ensure timely and effective responses, even if the alleged conduct occurred decades prior.
Social Media
The dramatic rise of social media has introduced accessible platforms for individuals to speak up about harassment and abusive behaviours. The use of online channels and forums to promote content and advertise brands is a natural method for the industry, as well as the celebrities working in entertainment, to engage consumers and audiences. Often, celebrities are idolised and regularly followed by consumers which creates a unique dynamic where the conduct of these individuals is seen to be very much in the public’s interest.
The risk for organisations is losing control of the narrative when reports are made public. External parties, such as sponsors, partners, ambassadors, and promoters will likely look to exit relationships due to the indirect reputational impact they may incur when associated with entities and individuals involved in the allegations. The operational nature of the sector means that public perception can potentially undermine an investigation into high-profile individuals, some of whom are public idols.
On the other side, the inherent exposure for alleged perpetrators who rarely have a right to reply when allegations are publicly reported against them, often experiencing a trial by media where only the court of public opinion is valid. Organisations may find it difficult to navigate investigations involving prolific individuals to ensure the process remains impartial and is fair for both sides.
Evolving Legal Landscape
All sectors face increased legal and regulatory scrutiny for conduct-related issues in an organisational setting.
In the UK, the Workers Protection Bill received Royal Assent just last month,11 creating a legal duty for employers to take “reasonable steps” to prevent sexual harassment of their employees in the course of their employment. While this might not apply to freelance or contractor workers common in the media and entertainment industry, the creation of a legal duty to prevent sexual harassment in organisations sets a legal milestone pushing a cultural shift in responsibility and accountability toward companies.
In New York, the Adult Survivors Act signed into law in May 2022 created a one-year window allowing victims of sexual offences of 18 years of age or older for which the statute of limitations has lapsed to file civil lawsuits, expiring on 23 November.12 A recent example of this new perspective is the reported filing by Julia Ormond of a lawsuit in the New York Supreme Court last month against agents CAA and Disney for negligence and breach of fiduciary duty in the wake of the Weinstein abuse.13
Considerations for Organisations
The global phenomenon of #MeToo and its permanence six years later suggests that for all industries, increased reporting of harassment and abuse is likely. It is, therefore, advisable for companies to be proactive in managing their risk, defining their approach, and preparing for the increased demand these types of cases will have on in-house teams.
Defining Behaviours Within Frameworks
The first step to any organisational and cultural change is setting out a clear framework for all people operating within the business structure. Setting out clear definitions of behaviours within company policies will promote how the business defines inappropriate conduct and its zero tolerance for harassment and abuse.
For media and entertainment, these definitions should be introduced not only to employee groups, but also to any other individuals or entities collaborating with the business including, freelance workers, brand ambassadors, sponsors, and promoters.
Training
In addition to defining behaviours in policy, organisations should also complement this with regular training to raise awareness from a practical level. This can include scenario-based questions and exercises to establish the types of behaviour people may encounter in the workplace and how to report misbehaviours, including those more sensitive, such as sexual misconduct.
Safeguarding Vulnerable Groups
In the industry, some groups of people are particularly at risk, for example, child performers. Effective design, implementation, and application of safeguarding procedures to protect vulnerable people performing or operating in the industry will help organisations respond to and mitigate harassment and abuse risks.
Promoting a Speak-Up Culture
Ensuring those operating in the industry understand how to report harassment and abusive behaviours without fear of retaliation is a vital component of any organisation’s remediation framework.
For media and entertainment companies, ensuring appropriate reporting channels are promoted in order to cater to the various types of profiles working within the industry at any given time is paramount. For example, it enables contractors and freelance workers to report any concerns observed. For a relationship-driven sector, independence and impartiality will also be key to minimise bias and enable people to feel comfortable reporting their concerns without fear of retaliation.
Reports should be received and managed by a neutral party within the organisation (i.e., not in direct control of career development or profitability of the business). Organisations may even want to consider implementing an independent committee or entity operating outside of the business structure to receive and manage cases reported. This also further demonstrates the organisation’s commitment to managing harassment and abusive behaviours in an objective and fair way.
Response and Remediation Strategy
For a business operating in a fast-paced public environment involving high-profile individuals constantly in the public eye, Boards need to ensure that response strategy and scenario planning are considered to enable timely response and action when allegations are either reported or leaked.
Independent advice and investigation will be required when allegations concern serious sexual misconduct involving high-profile individuals. Scenarios should also consider public statements and crisis communications which can be implemented as part of investigative strategy, where media coverage is necessary.
Implementing robust triaging procedures will help assess each case and allocate resources accordingly, including when to bring in external advisors.
Cultural Reviews
In assessing the current risk to the industry, companies can also undertake proactive cultural reviews for specific aspects of the business, perhaps in line with past reports received but not formally investigated, to help detect any existing issues and improve the working culture. Ensuring a positive working culture will help mitigate future conduct-related issues and promote behaviours that are in line with the organisational values and expectations.
If you have any concerns or require external advice and support in conduct-related issues, please contact conduct@ankura.com.
[1] Los Angeles County DA Office, ‘Harvey Weinstein Indicted For Sexually Assaulting 5 Women’ CPS, ‘Indecent Assault Charges against Harvey Weinstein’, Supreme Court of the State of New York, ‘People of the State of New York vs. Harvey Weinstein ‘
[2] Coqual, formerly CTI, 11 July 2017, ‘The Pervasiveness of Sexual Harassment in Today’s White-Collar Workplace New Study Reveals the Hard Numbers by Industry, Race, and Gender’
[3] The International Labour Organization, November 2020, ‘Policy Brief on sexual harassment
in the entertainment industry’
[4] University of York, 23 October 2023, ‘UK screen industry failing to tackle sexual harassment, according to new report’
[5] Forbes, 13 December 2022, ‘How The Speak Out Act Will Help Victims Of Workplace Sexual Harassment’
[6] See Footnote 1
[7] District Court of New Jersey, ‘Gretchen Carlson v. Roger Ailes’
[8] NHS and Department of Health, ‘NHS and Department of Health investigations into Jimmy Savile’
[9] Southwark Crown Court, ‘Regina v. Maxwell Clifford’
[10] County of Montgomery, Office of the District Attorney, ‘Commonwealth v. Cosby’
[11] UK Parliament, Parliamentary Bills, Worker Protection (Amendment of Equality Act 2010) Act 2023
[12] New York State, 24 May 2022, ‘Governor Hochul Signs Adult Survivors Act’
[13] New York State Supreme Court, ‘Julia Ormond v. Harvey Weinstein, CAA, The Walt Disney Company...’
© Copyright 2023. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
