Why we need to talk about speaking out

Speaking out, reasonably and responsibly, must be made safer. Until then, it needs to be done carefully.

Why we need to talk about speaking out
Photo by Michelle Ding / Unsplash

Our first guest essay of 2024 is by Nina Cresswell, a writer and campaigner who won a landmark libel case in 2023.

When Sinéad O’Connor ripped a photo of Pope John Paul II on Saturday Night Live in 1992, bringing attention to child abuse in the Catholic Church, she was banished by the music business. Years later, people realised just how right she was.

When women speak out – that is, bringing public awareness to abuse so it doesn’t go unexcused – they are, for the most part, punished. Those who choose to come forward about their experiences, in music as in any other realm, open themselves up to being publicly shamed, sacked, or sued. 

The needle is moving, but slowly. Former Grammy CEO Neil Portnow said women needed “to step up” if they wanted to receive Grammys in 2018. He ended up stepping down himself, then was sued by a woman in 2023 accusing him of sexual violence (something he says is “completely false”). Fast forward to the 2024 Grammys, and women aren’t only winning more trophies – they’re speaking up even more. Phoebe Bridgers, backstage with one of her four trophies, told Portnow to “rot in piss”. 

In the UK, we also have actual parliamentary reports on underrepresentation, discrimination, and abuse within the music industry. We have MPs highlighting steps to make the industry safer and fairer for women, especially Black women. One of these is improving how reporting is handled to CIISA (Creative Industries Independent Standards Authority), in the hope that CIISA could act as a deterrent to prevent serial perpetrators going unreported.

This is all a step in the right direction, since women’s equality hinges on institutional structures and the new cultural standards they set. If women having to shield their eyes from abusers at award ceremonies is the norm, any deviation from it seems abnormal. 

But what people who’re so scared of women speaking out need to realise is that the goal isn’t to limit or ‘cancel’ men. It’s about our complaints being heard for the first time and taken seriously. It’s about accountability for abusive actions: not only assault and rape, but misogynist behaviour and harassment that so often goes unchecked. And it’s about making sure that women in music, and other industries, can operate in creative mode, rather than survival mode. 

As it stands right now, the music industry is failing women. Just like the entire justice system fails women. It was made by white men for white men, and it’s taking its sweet time to dismantle intersectional discrimination. That’s why Baroness Helena Kennedy KC calls women speaking out a “form of civil disobedience”, describing MeToo as “a brick through the window of the legal system”. 

Still, while MeToo initially helped more women feel safer to speak out, powerful men in the entertainment industry soon set their lawyers to work to silence them.

Weaponising law to silence women

There is a legitimate need for defamation law, as we saw in the recent libel case of Laurence Fox, who was sued for defamation after baselessly calling two people paedophiles on social media. Drag artist Crystal and former Stonewall trustee Simon Blake won the case, with the judge stating:

“The law affords few defences to defamation of this sort. Mr Fox did not attempt to show these allegations were true, and he was not able to bring himself on the facts within the terms of any other defence recognised in law.”

In this case, libel law saw that justice was served. But the figures for women speaking out, and men threatening to sue, tell a different story. In the two years ending June 2023, there was a 5,000% rise in searches about suing women for defamation, according to data uncovered for a Cosmopolitan report by Robyn D’Arcy. In the same time, more than 21,000 (and counting) posts from women and survivors of abuse were shared about their fear of being sued for defamation if they spoke up. This is an uplift of 9,146%. But, considering 6.54  million women alone in the UK have experienced sexual violence, this still leaves almost 6.52 million who haven’t aired concerns.

The fear is real, and so are the threats: not just for individual survivors, but for media publications and industry bodies. For example, while anonymous reporting of incidents and behaviours would allow CIISA to pick up on trends and concerns regarding perpetrators and institutions, the Misogyny In Music report raised concerns about the legal ramifications of going any further:

“Ultimately, any form of justice will require persuading complainants to waive their anonymity. Defamation legislation will also require careful negotiation if CIISA is to ‘name and shame.”

As someone who has been on the bitter end of defamation proceedings after waiving anonymity to name a sexual assault perpetrator, I found out just how far an abuser – along with his enablers – would go on to gag my truth getting out. This is why few waive their anonymity and speak out.

When the accused takes out a libel lawsuit, you have two options: fight or settle. Even if you win, as I did, the fight is eye-wateringly expensive, traumatising, and, due to a backlogged legal system, takes years of your life. 

Public judgements are a rare read because most libel cases are settled before trial. In the US, Kesha and producer Dr Luke’s nine-year court battle (that began with rape accusations against Dr Luke, which he denied) was settled in 2023. 

However, not everyone settles and some cases do end up in court. As a buffer to silence or rebut serious allegations, there are many examples where lawfare – including the weaponising of non-disclosure agreements and defamation claims – has been used to prevent women speaking out, and has failed.

Mostly in the US, this protection for those speaking out is down to anti-SLAPP laws available in selected states.

Short for ‘Strategic Lawsuits Against Public Participation’, SLAPPs are abusive lawsuits that aim to silence free speech. Put simply, legal bullying by people who want to keep wrongdoings a secret, and so will harass, intimidate, and financially or psychologically exhaust their critics through improper use of the law. 

Take two recent examples: 

  • In February 2024, Marilyn Manson was ordered to pay Evan Rachel Wood and Illma Gore nearly $500,000 in legal fees after his defamation claims were thrown out. In their successful anti-SLAPP motion that got the claims dismissed, Wood and her lawyers wrote: “For years, Plaintiff Brian Warner raped and tortured Defendant Evan Rachel Wood and threatened retaliation if she told anyone about it. Warner has now made good on those threats by filing the present lawsuit.” 
  • In 2020, Phoebe Bridgers shared an Instagram post claiming she had “witnessed and can personally verify much of the abuse (grooming, stealing, violence) perpetuated by Chris Nelson”. Nelson, a producer, brought a £3.2m claim for defamation against Bridgers in 2021. Bridgers filed an anti-SLAPP motion in 2022 and the case was dropped. 

We’re edging closer to anti-SLAPP laws existing in the UK. In December 2023, MP Wayne David announced his Private Members’ Bill to “stamp out all SLAPPS”. If passed in line with the UK Anti-SLAPP Coalition’s model law, it will allow courts to throw out SLAPP cases at an early stage before they can do any more damage, reducing costs for targets and increasing costs (and risks) for claimants. By preventing bullies from gagging free expression, a UK anti-SLAPP law would better protect those speaking out against injustice, including whistleblowers in the music industry or journalists reporting on rich individuals

Why women speak

Across the world, laws against sexual violence are insufficient, inconsistent, or not regularly enforced. In the UK, statistics show that between October 2022 and September 2023, just two in 100 rapes recorded by police resulted in someone being charged the same year: let alone convicted. In fact, the conviction rate in England and Wales is 2%. This is why women speak out – it’s a last resort, done when internal reports aren’t taken seriously. 

As well as civil law (typically, private disputes where one party seeks compensation for damage), criminal law (offences against the state or society as a whole) is also evolving to provide better protections for women.

In 2019, Gina Martin’s campaign resulted in upskirting becoming a specific criminal offence, an act Wolf Alice’s Ellie Rowsell accused Marilyn Manson of in 2021 and he denied.

In another positive (and long overdue) development, as of 31st January 2024, those found guilty of cyberflashing or sharing intimate images without consent can face jail time. 

Breaking the music industry’s ‘culture of silence’ is even harder for women who’ve signed an NDA (non-disclosure agreement). The government report urges banning the use of NDAs in cases involving sexual abuse, bullying, or misconduct: a cause long-championed by Zelda Perkins, Harvey Weinstein’s former assistant and NDA-breaker. Through her campaign Can’t Buy My Silence (CBMS), she shares guidance helpful to those in the music bound by NDAs, including how to ask for a release

Breaking a silence (responsibly and reasonably)

To protect women in the music industry and hold perpetrators accountable, speaking out, reasonably and responsibly, must be made safer. Until then, it needs to be done carefully. 

Everyone can play a part in supporting the voices of those speaking out: online, a little means a lot when it comes to being an active bystander, from sharing with relevant networks to reporting abusive comments. To protect yourself and the person speaking out, be careful not to name the accused if they’ve not been named in the publication, and avoid speculation.

For musicians, journalists, music fans or anyone else who is considering speaking out, there’s a lot to consider beforehand. Whether you do so in the media, post on social media, or say something aloud, it can all be considered publishing. Defamation law includes both libel (written) and slander (spoken).

Despite years navigating the legal hellscape and winning a libel trial on a truth and public interest defence, I need to caveat that the following is not legal advice – simply a few things I’ve learnt from legal pros I’ve met and worked with. 

  1. If you can afford it, seek legal advice first. Remember: even if you know in your bones that your statements are true, the law is thorny and expensive. Advice pre-publication definitely saves the cost, time, and stress of defending a defamation claim unprepared. Especially if you can find pro-bono support. 
  2. Keep your receipts. Everything. Absolutely everything related to the subject you’re speaking out about. Every text, every email, every recording, and any other relevant evidence you can think of will be examined if it comes to defending a defamation claim.
  3. Note all investigations you make. Even if what they did was not fair, you have to be in your steps to guarantee truth and accuracy. Generally, this includes giving an accused his ‘right to respond’, which can sadly mean the silencing attempts arrive before you even hit ‘share’. In my case, I didn’t directly approach him first and the judge said my position as victim meant it didn’t go against me, but this is not always the case. 
  4. Be super clear about what you mean. As my brilliant lawyer Tamsin Allen explains: “the ‘meaning’ of what you say isn’t what you thought it was, it's not what you intended to say, it's not even what you can prove some people think you're saying… it's what the judge decides you're saying”. You might think you’re playing safe by being ambiguous, but it just opens you up to the possibility that a judge will find an unhelpful meaning. 
  5. Avoid identifying individuals if you can. For example, if it doesn’t make any difference to the story. If so, also be careful they can’t be identified in a different way, through what’s known as ‘jigsaw identification’. Sometimes, sharing a story without names to protect yourself can still start a snowball effect.

If you do receive a legal threat, don’t ignore it. If you’ve never seen one before, they can trigger serious panic. From the offset, they basically translate to ‘you’re in BIG trouble now’, but in ridiculously discombobulating jargon. So yes, they’re purposely designed to intimidate and scare you into silence, but that doesn't mean they shouldn’t be taken seriously. 

It’s not ‘diva behaviour’ or ‘too much’ to demand basic human rights – women have every right to speak about experiences of gender-based violence. As Audre Lorde taught us, it’s ‘better to speak remembering we were never meant to survive’. And so, if the music industry continues to make unfair, absurd, and dangerous inequality the norm, then our voices must get even louder.

Nina Cresswell is a writer and campaigner who won a landmark libel case in 2023. She has contributed to Louder Than War, Big Cheese, and Vive Le Rock, and can be found at @ninacresswellwriter on Instagram and @ohninac on X. 

Further exploration

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