Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
2017 was a good year for women. Or perhaps it just seemed so, because all years preceding it had, in terms of sexual abuse, been so very bad. It was the year that the ‘Time’s Up’ campaign threw a floodlight on sexual harassment within the film industry (see related blog by Claire Hastie Generation #: The power of social media in the fight for progress), and indeed other professional fields, and it was the year in which women became more empowered than ever before to speak out about their experiences of sexual assault. As TIME Magazine’s 2017 persons of the year, the ‘Silence Breakers’ demanded better protection. One solution advocated by Hollywood heavyweight Tom Hanks was for there to be professional ethics in show business. This view was echoed by Stephen Spielberg speaking to Buzzfeed, who proposed an industry-wide code of conduct “that everybody signs on with, who everybody is in general agreement with”, to confront sexual harassment and allow more victims to come forward.
In December 2017, the Academy of Motion Picture Arts and Sciences (‘AMPAS’) (who run the Oscars) responded to these demands by implementing Standards of Conduct and Process for Submitting Claims of Misconduct, which announced that “(t)he Academy is categorically opposed to any form of abuse, harassment or discrimination on the basis of gender, sexual orientation, race, ethnicity, disability, age, religion, or nationality”. In developing this document, AMPAS sought input from the Television Academy and BAFTA, as well as academic experts in sexual harassment, ethics, business and law. As the principal agency promoting excellence within the film and media industries, AMPAS is well placed to set standards of professional behaviour that are recognised beyond its membership. However, what legal basis does it have? and does this spell a new era for professional conduct regulation for film makers?
According to its CEO Dawn Hudson, AMPAS identifies itself as a “professional honorary” organisation. Although it operates largely in the United States, and is therefore a creature of US law, comparable entities in the UK might be private societies or clubs, which will usually incorporate a level of conduct expected from members as part of their rules for membership. The role is very different to that of a professional regulator which, traditionally, would be required by statute to implement a formal code of conduct, setting specific professional standards to protect the public and uphold the reputation of the profession. Indeed, as Hudson clarified in her December 2017 letter, AMPAS has “no intention of functioning as an investigative body or moral court”. Yet she later added that the organisation did have “a right and duty as a voluntary association to maintain clear standards of workplace behaviour for those we accept as members”. Such disciplinary action would be adjudicated by AMPAS’ Board of Governors, on which Hanks currently sits, in accordance with the organisation’s existing by-laws. Evidently its jurisdiction covers only those elite few who have acquired membership. Nonetheless, the reputation and influence of AMPAS should not be underestimated, and aspiring film-makers may not wish to act in any way that might impede future membership. That being said, the current debate surrounding this issue suggests strongly that such a code should apply to everyone working in the film industry, whether they have obtained or aspire to obtain AMPAS membership, or not.
It has not been suggested that actors and film-makers should be subject to the same regulatory scrutiny as doctors, teachers, lawyers or accountants. However, is there something about this particular field of work that sets it apart from others, and demands additional oversight? We know that actors may often be required to put themselves in vulnerable positions when performing a role, and indeed young female actors in particular may undertake these tasks to advance their career, or where they are simply unfamiliar with the process, what is deemed acceptable, or what their rights are. Most will ultimately assume this risk, or accept this vulnerability as part of their job. However, as Tom Hanks has pointed out, there are "plenty of people going into [the film industry] for power”, and this power can be abused by producers, directors, or co-stars. One notorious example depicted in the 2012 film, The Girl, was the torture inflicted on Tippi Hedren by Alfred Hitchcock during the filming of the attack sequence in The Birds, where he allowed her to be repeatedly struck by a mechanical bird on a zip-line.
Oscar Wilde observed that “life imitates art far more than art imitates life” (The Decay of Lying, 1891) and indeed, the influence that film and television wield over our culture, our understanding of the world, and even our morality, is enormous. Responding to Casey Affleck’s Oscar win in 2016, actor Constance Wu tweeted that the award was one that “honors a craft whose purpose is examining the dignity of the human experience and young women are deeply human” and, as such, should not have been bestowed upon someone associated with allegations of sexual harassment by female colleagues. Where the highest accolades in film-making are intended to reflect an ability to examine ‘the human experience’, there is surely no place for those who show no respect for it, and who have used and abused their position to degrade female colleagues. In short, film-makers have an additional responsibility to behave in accordance with high ethical standards because of both the nature and importance of their work and its reach.
Whether an ‘industry-wide’ code of conduct is the answer to these challenges is unclear. Other regimes or protections do exist, but perhaps people are less aware of them, or unfamiliar with the processes. For instance, actors unions and guilds, such as Equity in the UK, try to offer protection to young actors facing the risks associated with ‘the casting couch’. Moreover, many of the allegations against Harvey Weinstein for example, have instigated a criminal investigation into him, as well as civil action.
Given this existing framework, the AMPAS code of conduct is itself vague, with one single paragraph setting out the basic professional standards of the organisation which, if violated, could result in suspension or expulsion. Unlike the more prescriptive codes incorporated by statutory regulators in the UK, such as the Solicitors Regulation Authority, the AMPAS document does not identify particular acts or indicative behaviour that could amount to misconduct. Instead it states that “(t)here is no place in the Academy for people who abuse their status, power or influence in a manner that violates recognized standards of decency”. Clearly the Academy did not want to bind itself to any one position with regards to what is acceptable behaviour. After all, it is not statutorily obliged to be comprehensive where the consequences of a breach are, in theory, less severe than a criminal or civil violation. However, the text as it currently stands is unhelpful. Its ambiguity could lead to confusion and perhaps even stifle creativity where directors or producers are overly defensive or conservative in their approach to film-making for fear that it might offend against the code and lead to their expulsion from AMPAS. The wording also suggests that abuse of status is permitted where it is carried out in a manner that does not offend ‘recognized standards of decency’. In addition, it is unclear to what extent the new conduct rules have been incorporated into the application process for new members. Membership appears to be predicated on the applicant’s career credentials, rather than their personal suitability and past conduct. As such, it is difficult to see what added value the code offers to the existing legal framework, other than to reaffirm AMPAS’ commitment to the Time’s Up campaign.
‘Time’s Up’ is a movement about women and led by women. The creation of the AMPAS Code of Conduct is a direct result of female courage, and marks the Academy’s more involved and pro-active role in ensuring certain standards of behaviour within the film-making community. Its reach may be limited and its purpose unclear in the context of existing punitive regimes, but it is a significant step for an industry whose primary purpose is to examine and respect the human experience. We must therefore #PressforProgress and continue to define and promote ‘recognised standards of decency’ - not least to assist AMPAS’ Board of Governors in adjudicating claims of misconduct against its members.
IWD is an opportunity to build on the progress that has been made towards gender parity and to celebrate the achievements of women on a global scale. This year, #PressforProgress.
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