Weinstein scandal: Confidentiality clauses that bottle up harassment and abuse in the spotlight
Movie mogul Harvey Weinstein was able to keep his history of sexual harassment and abuse secret through the use of non-disclosure agreements (NDAs)
The fall-out from the Harvey Weinstein scandal is prompting a re-examination of nondisclosure agreements in the US amid fresh revelations about how the movie mogul silenced women who accused him of abuse.
Campaigners say the avalanche of allegations emerging against powerful men in Hollywood, journalism and politics show that publicity is a key factor in exposing wrongdoing.
However, Mr Weinstein was able to keep his history of sexual harassment and abuse secret through the use of non-disclosure agreements (NDAs).
One of his victims, Ambra Battilana Gutierrez, an Italian model, told the New Yorker she signed a confidentiality agreement in 2015 before knowing the media mogul had a pattern of sexually harassing and abusing women.
“I didn’t even understand almost what I was doing with all those papers,” she said, discussing her settlement for the first time. “I was really disoriented. My English was very bad. All of the words in that agreement were super difficult to understand.”
Last month The New York Times revealed that Mr Weinstein had been the subject of multiple sexual harassment allegations. He was fired from the company he founded and expelled by the motion picture academy, the body that awards the Oscars.
The wave of publicity brought forth fresh allegations as dozens of other women described similar stories of harassment or assault.
They included Zelda Perkins, who worked as Mr Weinstein's assistant in the London office of Miramax, who broke a nondisclosure agreement she said she signed in 1998.
Kathryn Rubino, a senior editor at Above The Law, a legal industry blog, said it was becoming increasingly clear that the agreements were part of the problem.
“NDAs are a part of the legal landscape. It’s a tool that we are taught to deploy on behalf of our clients and it’s a normal part of the interactions your client might have,” she said.
“What we are learning as a result of the Weinstein scandal is that they are more than just neutral tools, that the culture of silence that they perpetuate can be really detrimental and problematic, particularly when you are dealing with people in an unequal power position.”
Typically, one party agrees to drop legal action in return for a payment and their silence. They are also often included in employment contracts to prevent former members of staff badmouthing their employers.
Lawyers for some of the women involved point out that NDAs can also have benefits for victims who want to remain out of the public eye.
In the case of Ms Perkins, she secured a clause that required Mr Weinstein to receive therapy and Miramax, the company he founded with his brother Bob, to set up a proper complaints procedure.
Nevertheless, his behaviour continued in secret for another 19 years.
As well as NDAs, Mr Weinstein used private intelligence firms to find information that could be used to discredit his accusers, such as Ms Gutierrez. On another occasion in the 1990s, his brother paid a settlement.
Bob Weinstein told The New Yorker: “Regarding that payment, I only know what Harvey told me, and basically what he said was he was fooling around with two women and they were asking for money. And he didn't want his wife to find out, so he asked me if I could write a cheque, and so I did, but there was nothing to indicate any kind of sexual harassment.”
The power of publicity was clear once revelations reached the press. The scandal triggered a social media campaign with the hashtag #metoo as millions of women detailed past abuse they suffered.
This week the veteran American journalist Charlie Rose was sacked by CBS News and PBS after several women said he groped them or appeared naked in front of them. He has apologised for his behaviour although he has questioned some accounts.
At the same time it was announced that the head of Disney’s Pixar studio, John Lassiter, would be taking a six-month leave of absence after admitting “missteps” with employees.
The wave of allegations has prompted action in California, where a state senator is planning to introduce legislation to ban confidentiality clauses in such settlements.
“Secret settlements in sexual assault and related cases can jeopardise the public — including other potential victims — and allow perpetrators to escape justice just because they have the money to pay the cost of the settlements,” said Connie Leyva when she unveiled her plan.
Others wonder whether those examples might be better prevented by modifying the terms of NDAs to prevent their use when there is an obvious imbalance of power between abuser and abused. But even that offers no easy answers, said Ms Rubino, of Above the Law.
She said: “What is too much? How much power imbalance would trip that?”
Updated: November 23, 2017 06:25 PM