If you work in the arts, you are used to staying tight-lipped about new works in development, and artists tend not to share their ideas beyond a trusted few.
But, aside from being a routine habit, there are a number of financial and legal reasons for strict confidentiality around creative work.
First, it’s a good way for creatives to protect their (IP) Intellectual Property – because if your work is not yet a tangible “work” in legal terms, it’s important to keep your ideas on the down-low to prevent others from stealing them and making that work first.
Second, it’s a shrewd move in strategic marketing because it helps generate buzz around a new project. Just look at how global pop stars design key “reveals” and “surprise drops” of albums to stoke interest in their work.
Finally, if you are working in any capacity for an arts company or organisation, there will always be information to which you are privy that is commercially sensitive, so it’s important not to share that information publicly and risk your company/employer losing their commercial edge.
But what happens if there’s something going on in the workplace that you think needs to change, and there isn’t anyone inside your company who can help you with these concerns? If you raise these issues with someone outside your workplace, are you in breach of the confidentiality clauses in your contract?
Furthermore, do these kinds of “top secret” cultures threaten transparency in our industry and curb open dialogue around difficult issues we know need to be shared?
How can we best achieve a healthy balance, where we can have appropriate levels of confidentiality, as well as a workplace culture that supports freedom of speech?
ArtsHub speaks to some experts for their views on the best ways to support ethical practice in this space.
Respecting artists’ right to speak out
When it comes to confidentiality clauses that have been heard around the world, there is no more famous recent example than the way Hollywood producer Harvey Weinstein used non-disclosure agreements (NDAs) in the pay deals he made with female actors who accused him of sexual assault, to ensure their allegations would never make headlines.
The women who eventually went public with their stories, did so in breach of those contracts with Weinstein’s company, so they actually risked being sued by him for speaking out in the way that they did.
It’s amazing to realise the #MeToo movement was kicked off by these women’s legally risky actions, which were, after numerous lengthy court cases, proven to be warranted and were deemed necessary in exposing serious criminal behaviour and harmful abuse.
But what about other workplace scenarios where arts workers feel there are dodgy things happening on the job. Do the confidentiality clauses in their employment contracts allow them fair licence to speak up?
According to Australia’s media union, the Media, Entertainment and Arts Alliance (MEAA), the best way for prospective arts employees to avoid sticky situations around confidentiality is to read their employment offer contracts carefully first, and be wary of any silence clauses relating to the most fundamental aspects of their work.
As MEAA Director of Communications Mark Phillips tells ArtsHub, ‘If a contract has clauses that limit your ability to disclose any basic elements of your work, such as those pertaining to your safety, underpayments of wages or whether or not you are being harassed, then alarm bells should ring.’
He continues, ‘The MEAA is absolutely opposed to the idea that workers should have to stay silent on fundamental aspects of their work like those relating to their safety, pay and working conditions.’
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While Phillips stresses there are some instances where employers have a legitimate right to expect contractual confidentiality with an employee around aspects of their job – such as issues of commercial sensitivity – he is clear that it is not right to ask those employees to also stay silent on aspects of their work that concern their safety and wellbeing on the job.
‘It’s the difference between a clause that limits an actor’s ability to publicly share a work’s key plot points, characters and tour dates, which is obviously commercially sensitive information, and a clause that limits their ability to speak publicly about an incident they witnessed on the job that may have involved negligence or harassment.
‘The latter example is asking you to forgo your basic rights as a worker and so those kinds of confidentiality clauses should raise alarm bells.’
Philips says that if MEAA members find such clauses in a contract they are being offered, and are unsure whether to sign, they can call the MEAA for advice.
And, in more serious cases, where members may want to make a complaint about a workplace incident or a breach of workers’ rights such as non-payment of wages, the MEAA can offer members initial advice. If and when the complaint becomes more serious, however, the MEAA will refer members to specialist lawyers to continue these complaint processes.
Should silence be part of workplace dispute settlements?
When it comes to these more serious cases, which may involve workplace harm or abuse, it’s concerning to think that a confidentiality clause within someone’s contract could affect their ability to speak up about their experiences.
This subject has recently been on the minds of Social Justice Practitioners-in-Residence at the University of Sydney Law School, Regina Featherstone (Human Rights Law Centre) and Sharmilla Bargon (Redfern Legal Centre) whose April 2024 report titled, Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report, raises questions around the ethics of contractual silence clauses specific to cases of workplace sexual harassment.
As the authors point out, the Australian Human Rights Commission’s 2020 Respect@Work Report identified NDA use as widespread in Australia, and as having the potential to be harmful by silencing victim survivors and concealing the behaviour of harassers.
Two years later, the Commission published specific guidelines on confidentiality clauses in the resolution of workplace sexual harassment complaints, but Featherstone and Bargon’s research shows these guidelines are not yet being taken up by the majority of Australian lawyers working on such cases.
On the contrary, they found that 50% of solicitors they interviewed have never advised their clients that sexual harassment matters could be resolved without strict confidentiality clauses, and most lawyers see any move to diverge from the widespread practice of embedding full confidentially terms in workplace sexual harassment settlements as being a major complication, if not an impediment, to a successful conciliation process.
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But as Arts Law solicitor Katherine Giles explains, in cases where arts employees or contractors want to speak out about workplace harm, they shouldn’t automatically assume an NDA they have signed will prevent them from doing so.
As Giles tells ArtsHub, ‘If someone has signed an NDA and then they leave a workplace after experiencing harassment on the job, there may still be ways they can legally speak publicly about what’s happened to them.’
She gives the example of situations where individuals can make lawful disclosures under whistleblower laws, or where the disclosure is legally required, such as giving evidence in court – both of which are alternative pathways for a complainant to speak out, even if they have signed an NDA.
Though the solicitor is quick to stress that no one should take action of this kind without seeking proper legal advice.
‘It’s very important to check these kinds of details over with a lawyer first, to make sure you are well aware of the laws that apply to your particular situation,’ she says.
The MEAA’s Mark Phillips agrees that legal advice should always be sought for serious workplace matters, and adds that the MEAA remains ‘sceptical about the use of non-disclosure agreements or confidentiality clauses as part of dispute settlements, particularly those concerning sexual harassment or assault, as this may prevent a victim from giving evidence or warning others about a perpetrator’.
The Federal Government’s Creative Workplaces (established in 2023 as part of Revive, the National Cultural Policy) was contacted by ArtsHub for this story, but was too busy to provide input.
