Associate Jessica Welch details the reputational considerations of Kevin Spacey's recent trial culminating in his acquittal in Southwark Crown Court, and discusses the implications of his acquittal for his reputation and career.
In July 2023, the actor Kevin Spacey was acquitted by a jury of nine charges of sexual and/or indecent assault and of ‘causing a person to engage in penetrative sexual activity without consent’ that had been brought against him in May and November 2022. The alleged incidents were said to have taken place between 2001 and 2013. Spacey always denied the allegations.
The trial, which took place in Southwark Crown Court in London was high profile and followed all over the world. Dealing with serious charges, it was of great importance to both those who had accused Spacey of wrongdoing and to Spacey himself, who was fighting for his freedom and reputation.
As we explain below, there were serious and life-changing consequences for Spacey as soon as the allegations were made public, and we have no doubt that urgent work was undertaken to try to contain the damage as much as possible. Spacey is likely to have had media lawyers advising him throughout. However, the stage of the criminal process often dictates how much public-facing ‘damage control’ can or should be undertaken. The preparation for a criminal trial rightfully takes precedence over fighting to protect an individual’s reputation, but it is imperative that work is done behind the scenes to ensure that immediate steps can be taken, when possible, whether that is engaging with the media, or considering legal action.
So, what next for Spacey? Will he have redress, and will he ever work in the same way again? He may want to explore taking legal action but, on the other hand, he may just want to move on from this period of his life and look to the future. Either way, behind-the-scenes preparation will have been crucial to ensure that when acquitted, he could immediately start the process of rebuilding his reputation, in whatever form and however he chooses to do so.
The accusations about Spacey allegedly making unwanted sexual advances towards another actor were first made public in a Buzzfeed article published in 2017. The fallout was rapid. According to his manager Evan Lowenstein, who was quoted in an article published in ZEITmagazin on 14 June 2023, “over the course of 48 hours, he lost everything.” Articles appeared on the CNN website and in The Sun. Netflix promptly dropped Spacey from the series “House of Cards” and ceased production of the film “Gore” in which Spacey starred. Scenes originally performed by Spacey for the film “All the Money in the World” were reshot with another actor. Subsequently, Media Rights Capital, the Netflix producer, sued Spacey for $31 million as a result of his alleged breach of his contractual obligations to provide services “in a professional manner” that were “consistent with [MRC’s] reasonable directions, practices and policies.” MRC won.
This article looks at the work that can be done if an individual is accused and then charged with a crime, and, specifically for Spacey, what the impact was of the allegations and how he might start to rebuild his career now that he has been acquitted.
Prior to charge
There are steps that an individual who is accused of a crime can take to protect their reputation. In England and Wales, prior to being charged, a person under criminal investigation has (as a starting point), a reasonable expectation of privacy in respect of their identity and information relating to that investigation. So, unless there are exceptional circumstances, for example, to encourage witnesses to come forward or if there are public safety concerns, there is work that can be done to protect an individual’s right to privacy during this time.
This right is important because it allows the police to conduct their investigation whilst avoiding causing irreparable damage to a potentially innocent individual’s personal and professional reputation. It is entirely foreseeable that a potential consequence of publishing the allegations at an early stage is that the presumption of innocence afforded by our legal system is not respected from a public or corporate perspective; the respect of the privacy of the individual helps to safeguard against that risk.
In Spacey’s case, after the articles were published, the companies he worked with, Netflix and MRC, amongst others, dropped him from his contracts, likely out of a desire to be seen to be reacting responsibly and quickly. Whilst it is important that they take the allegations seriously, companies face the invidious position of having to walk the tightrope between doing the right thing (or, at least, being seen to be doing the right thing) for the accuser and ensuring that the accused gets treated fairly. That is an increasingly difficult balance to achieve and getting it wrong can have serious, and expensive, consequences. Reacting too slowly to allegations can lead to criticism or, on the other hand, making a snap, reactionary decision without proper justification and investigation can expose companies to liability.
Upon charge, the CPS will often put out a statement confirming the fact that charges have been brought, as they did with Spacey. During this time, the law of contempt of court can be used to limit the harm caused to an individual’s reputation once proceedings are deemed to be ‘active’, as the law restricts the media (and others) from publishing articles which create a substantial risk of seriously impeding or prejudicing the proceedings. This law primarily exists to prevent a jury from being influenced by what it reads in the press about the case, the allegations, and the charges. So, an important task during this time is to ensure that third parties, including the media, remain compliant. Generally, most mainstream media organisations are aware, and usually observant, of the rules. That is unfortunately not the case for some smaller media organisations or some freelance journalists, or indeed some on social media. It can be time consuming trying to deal with those types of situations, but it can be important work.
It is crucial to prepare behind the scenes to be ready to react if the charges are dropped and/or in anticipation of when the individual is acquitted. For example, it is important to help the individual manage the media and stakeholders and to engage properly and meaningfully with the press (and/or their legal departments) to the extent permissible. This can be difficult when an individual is awaiting trial, but it is imperative in order to stand a chance of correcting the narrative and protecting a person’s legal rights. No doubt Spacey and his team were preparing throughout this period.
During the trial
The next challenge for Spacey arose during the trial. The law in England and Wales allows the media to publish allegations, accusations, criticisms, or opinions about an individual aired in court, contained in a witness statement, or given in oral testimony provided that the publication is fair and accurate. It is the task of those working with the individual to monitor and correct any coverage which inaccurately reflects what is said in court.
During his trial, Spacey was labelled “a sexual bully” who “delights in making others feel powerless and uncomfortable” and that “he did what he wanted to do for his own personal sexual gratification”. Those allegations were then published by the press. Again, even though he was acquitted, provided that these statements were accurate reflections of what was said in court, it was lawful for them to be published. Given the freedom for the media to publish in this way it is, therefore, important to ensure that context is included in relation to any statements that are reported to help to avoid any misrepresentation of the allegations. It may be possible in a number of years’ time to make requests of search engines like Google in the U.K. and Europe to delist search results, but for now, the articles will remain online. This, again, emphasises the importance of engaging with the media throughout the criminal process so that the narrative remains accurate and fair.
On acquittal the work on rebuilding an individual’s reputation can begin, by implementing the preparatory work that ought to have been undertaken in the meantime. This may include considering taking legal action against publishers of false allegations, although the availability of such actions is heavily dependent on the facts. For example, the length of time that has passed since the publication of the articles is relevant because in the U.K., you have one year from the date of first publication to bring a claim. In Spacey’s case, the first allegations were published in 2017 and his trial took place in 2023. The limitation period for defamation claims in his case had long since expired by the time of his acquittal.
Depending on the circumstances, it may be possible to commence a privacy action against a news organisation and/or even the police, or to bring a breach of contract claim (for both of which there is a longer limitation period of six years). But, again, there are many issues at play. In all of these cases, individuals will want to carefully consider the consequences and benefits and risks of taking legal action.
What next for Spacey?
This trial is unlikely to be the end of Spacey’s career. It was reported in the ZEITmagazin article of 14 June 2023 that he remained hopeful stating that “there are people right now who are ready to hire me the moment I am cleared of these charges in London.” It will be interesting to see what his next project will be.
It is clear that the position of individuals who are accused of crimes is complex, both from a societal and legal perspective. Putting aside the obvious stress and emotional turmoil involved, as well as the fact that being investigated by the police is a very serious thing in itself, perversely, from a reputational perspective, it might be argued that an individual is more likely to restore their reputation if they are charged with a crime and acquitted, rather than simply accused publicly but never charged. As a result of going to trial, Spacey has the benefit of a ‘not guilty’ verdict from the court. In the situation where there is no criminal investigation commenced and/or no charges brought, which is positive for many reasons, from a reputational point of view, this leaves an individual without a final judgment or definitive decision stating that they are not guilty. Quite often, it is just the CPS who announces that there will be ‘no further action’ which is usually entirely insufficient to vindicate an individual’s reputation. Individuals in these circumstances are left in the uncomfortable position where – in the eyes of the law – they are innocent, yet articles about the underlying allegations often remain online with limited redress available (absent being able to bring litigation against those who unlawfully published private information or defamatory allegations).
This emphasises why it is so important for the press to act responsibly and cautiously when publishing articles about allegations in the first place. It also shows why innocent individuals ought to fight hard for the right to privacy whilst an investigation is ongoing and to defend their reputations, ideally before the stories start to emerge into the public domain. Once the news is substantially out there, it is very hard, although not impossible, to regain control of the narrative and be vindicated in the eyes of the general public.
As for Spacey, his reputation has been seriously damaged, and many within the industry are likely to be reluctant, at least initially, to work with him again. He may have to work behind the scenes, perhaps on smaller projects, whilst the dust settles and whilst the major production companies regain their confidence.
Jessica's article was published in Law360, 17 August 2023.