The Law Gorgeous is a new column by TheArtGorgeous where columnists and art lawyers Alana Kushnir and Yayoi Shionoiri answer your art world questions. Email your art x law worries to [email protected]
I’m a gallery assistant and I want to call out my employer because I feel they are bullying me. Can I post about this on my social media? What implications should I be aware of?
We’re so sorry to hear you are having a tough time at work. So many of us are in this industry because we are passionate about art and want to support artists. But that doesn’t mean that we or you should accept behaviour that affects your work environment and takes a toll on your mental health. That said, we do think it’s important that you are aware of the real consequences when it comes to resolving problems using cancel culture tactics.
We’ve all heard of cancel culture, and it does tend to be a phrase that is used in different ways but different people. So, to help you on your way we think it would be best if we start off by explaining in a little more detail what we actually mean when we use the phrase ourselves. A narrow take on cancel culture is that it is where a person, or a group of people, take to social media to voice critical views of another person, group of people or an entity like a business or organisation, with the intent to shame that person. Generally, the intended effect of this approach is to “cancel” said person or entity.
These days we are no short of options when it comes to Instagram accounts that use cancel culture tactics with an art industry focus. There’s @changethemuseum, @cancelartgalleries, @surviving_the_artworld @heardsceneand @thewhitepube, just to name a few. Go on, have a look if you haven’t already, you’re guaranteed to fall down the Instagram Rabbit Hole with some of these. But just what is it that makes cancel culture so different, so appealing? That’s a riff off of an iconic 1956 Richard Hamilton artwork, just FYI. Here’s a great response to that very question, from Dr Jill McCorkel, a professor of sociology and criminology at Villanova University, “It’s psychologically intoxicating to feel part of a group and to feel a part of something larger than yourself.”
Another reason for the rapid take up of cancel culture is related to the understanding of social media as a court of public opinion. It’s a “court” because those real, old school courts usually only see private disputes between individuals where those individuals have the financial and emotional means to bring or defend an action. In our experience, that is no easy feat. Unfortunately, having your day in a legit court is usually not a realistic option for the everyday person. Whereas on social media platforms, access is as easy and immediate as signing up for a free account. Your voice can be amplified if people are sympathetic to your cause or plight, and can therefore feel like an effective way to stand up against the system. But before you start considering whether your call out may look better against a white or black background, we’re here to tell you that taking the cancel culture approach can come with some legal consequences that you may want to consider.
A particular area of law that cancel culture tactics can trigger is defamation law. Defamation is a legal action which aims to balance the freedom of speech in society with protecting a person’s reputation or personal esteem or character against harm. In 2019 artist Subodh Gupta brought a defamation action and claimed a loss of USD $700,000, when @herdsceneand published anonymous claims of sexual harassment. While the matter settled out of court in February 2020, the early court deliberations concerned the question of whether Facebook, which owns Instagram, should be compelled to disclose the identity of the anonymous publishers of @herdsceneand. In other words, it’s important to keep in mind here that cancel culture tactics may not only expose you to being pursued on the basis of defamation, but the anonymity on which so much of cancel culture is built may not hold up. If your identity is disclosed, what will this mean for your reputation? Will you be seen as a risk by potential new employers? Meanwhile, @herdscene haven’t published a post on their Instagram account since August 2019.
Another element you may wish to consider is your contract with your employer, or other written agreement about the terms and conditions relating to your employment. These days, many contracts allow a party to bring the contract to an end when another party to the contract has done something which is likely to harm their reputation. Have a read of your employment contract and consider what contractual rights your employer may have if you take the social media route.
There’s no magic solution to these kinds of implications, but what we can suggest is something very practical – before you send or post, sleep on it. Give yourself the time to weigh up your options and avoid regret. Better yet, get legal advice. It may well save you a lot of time, energy and finances down the track.
This article is of a general nature only and should not be considered specific advice.
Yayoi Shionoiri is an art lawyer and the Executive Director of the Chris Burden Estate and the Nancy Rubins Studio. Find her on Instagram here and at her website here. Alana Kushnir is the Founder and Director of Guest Work Agency, an art law and advisory firm based in Australia but international in reach. She is also the Principal Investigator of the Serpentine’s Legal Lab. Find her on Instagram here and LinkedIn here.