Morality Clauses - who sets the standards?

The role of morality clauses in contracts has been in the spotlight recently amidst the whirlwind of allegations surrounding the likes of Weinstein, Spurlock, and Spacey. Film distributors and publishing firms have been hastily reviewing their contracts to see if they can terminate the contracts of those who they consider to have fallen below acceptable standards of conduct. The aim of course is to terminate the contracts and then distance themselves from those who have been accused of getting up to no good.

Morality clauses can be seen in talent or endorsement agreements and they give the employer the right to terminate the agreement if the employee acts in such a way that it reflects negatively on the employer or otherwise reduces the benefit of the agreement to the employer.

But what are we to make of corporations passing judgment from the so-called moral high ground when an employee has not been convicted of any crime or wrong-doing? There have of course been cases where the individual in question has admitted wrong-doing. And in those cases one cannot sensibly question an employer’s right to exercise a contractual termination clause.

But what of those cases where an individual denies wrong-doing and the employer is simply bowing to media pressure by terminating a contract? In those cases, the employer is reacting to a suspicion, no matter how baseless that suspicion may be. What appears to matter most in those cases is the extent of media pressure and the gravity of the alleged wrong-doing. The principal of innocent until proven guilty is trampled on in the media stampede.   

The inclusion of morality clauses in contracts between publishers and their authors has also been seen as a troubling development. The clauses have been criticised as an attempt to police authors, and to give publishers the right to drop authors who act “immorally”.  But who is to judge what is an offensive opinion, or an immoral view? Against what standards are such opinions and views measured? The ability for publishers to determine what can and what cannot be said, perhaps simply at the whim of one individual within the publishing company who does not agree with the author’s view raises troubling questions about the freedom of speech and the role of so-called moral arbiters in society.

Debating the rights and wrongs of setting moral standards in society is too much of a tinderbox debate for this forum. But what is certainly a disturbing anomaly from a legal perspective is the principle of terminating a contract on the basis of a suspicion that something immoral may have happened but where that suspicion has not been confirmed by a judicial body. 

Let’s cut to the chase here. One has to query whether this has anything to do with morality at all or whether this simply boils down to the protection of profit, to the guarding of lucre earned in a morally questionable market. Hypocrisy anyone?