I n 2023, in the wake of Hamas’s October 7 attacks on Israel and Israel’s counter-war, Wanda Nanibush abruptly left the Art Gallery of Ontario. What followed was a wave of speculation (including reporting in this magazine) about what had happened to the gallery’s inaugural curator of Indigenous art: Was she let go? Did she leave due to differences between her own pro-Palestinian political views and those of the organization and its donors? Did she want to leave? Was she okay? What was the AGO hiding?
We put ‘u’ in neighbour and you in Canada’s conversation. Enjoy a roundup of Canada’s best writing. Sign up for The Walrus newsletter and get trusted Canadian journalism straight in your inbox.
These questions remain unanswered because Nanibush reportedly signed a confidentiality agreement.
In late 2023, the Indigenous Curatorial Collective Association sent a letter to the AGO titled “Let Wanda Speak.” A follow-up statement on their website in June 2024 reiterated their demands: “We see it as vital that Wanda Nanibush be able to speak freely about the circumstances regarding her departure from the AGO.” The central demand of their open letter was clear, that “the AGO release Ms. Nanibush from any legal obligations preventing her from speaking publicly about her tenure and dismissal, about how she sees what happened and why.”
A short back and forth commenced, with the AGO responding on January 30, 2024. “At the end of the day, the AGO signed an agreement with Wanda that is and remains confidential,” the letter reads. “We believe that the AGO and Wanda both negotiated in good faith and worked to come to a mutual agreement. We made commitments to confidentiality in the process. We will honour that commitment; we won’t be making further statement.”
In the AGO’s response, gag orders are reframed as benign commitments made in good faith. The ICCA pushed back on the suggestion of a mutual standing in their response on June 4, 2024: “If we are to be in conversation with the AGO, we expect that this will be a relationship that has balance. This balance cannot be achieved in an unequal power structure where the AGO defines what we can and cannot talk about.”
Confidentiality agreements—also known as non-disclosure agreements (NDAs) or gag orders—almost always involve a power imbalance, and they’re becoming more prevalent in the art world. Silencing in the Arts, an organization in Canada that researches and tracks the impact of NDAs in the art sector, found that of their forty-five survey participants, over 66 percent had signed an NDA, with 51 percent saying they were not given adequate time to consider signing; 22 percent left the art sector altogether after signing.
Popularized during the Silicon Valley tech boom in the ’70s and ’80s to protect trade secrets, including proprietary algorithms and code, NDAs have gradually become a commonplace business practice. Anyone from interns at a high-profile company to a celebrity’s one-night stand might be asked to sign one. Can’t Buy My Silence, an organization focused on preventing the misuse of NDAs, co-founded by Zelda Perkins, the first person to break her NDA with Harvey Weinstein, and Julie Macfarlane, emerita distinguished professor of law at the University of Windsor and member of the Order of Canada, believes NDAs are increasingly being used as a way to conceal employer wrongdoing.
“They have become the default solution for corporations, governments, organizations and powerful individuals to cover up cases of harassment, discrimination, bullying and other harms,” they explain in a statement. “By threatening victims with legal consequences for speaking about what happened to them . . . they silence victims and protect perpetrators and abusive organizations.” Silence, speculation, gossip. The rise of NDAs has bred distrust between art workers, institutions, and the public they claim to serve.
Soon after the events of October 7 and the start of the war in Israel and Palestine, an unexpected email arrived in Alex’s inbox from the art organization she worked for, requesting that she sign an NDA. (For her protection, Alex has asked that her name and any identifying details be changed, as the NDA she signed prohibits her from speaking about her experience.) The NDA stipulated that any information staff heard discussed in the office could not be repeated, including discussions the staff were having about how to respond to crises within the organization.
Alex assumes this was put in place after journalists started contacting staff and asking for comments on structural shifts within the organization, as well as discussions between staff about Israel’s ongoing war in Gaza, which has been a contentious topic in the art world. Alex recalled a docent openly discussing her support for Israel in a public area of the institution. The conversation veered into a territory that made Alex uncomfortable, with an angry tenor and proud support of violence against Palestinians. Within the month, Alex received the request to sign an NDA.
“I was hesitant when I first got it. I felt quite uneasy and icky because my political views don’t align with some of the ones I’ve heard,” Alex tells me. “But I did sign it because it was the first NDA that I received. I was relatively new to the art world. I thought, I don’t even want to get tied up in this,” she explains. “If you’re talking about politics loudly in the office where I can hear, what do you expect? Maybe the onus should be on the employer to act better.”
Alex didn’t speak with a lawyer before signing, a common experience among people asked to sign NDAs, as they’re often young and lack the financial resources for legal consultation. “Many of those signing an NDA do not get legal advice,” explains Can’t Buy My Silence. “Many of the NDAs we see would be unenforceable for vagueness, unreasonableness, or imbalance of power but victims cannot afford to bring a legal challenge.” The organization also says that women are four times as likely to sign NDAs as men and that NDAs are frequently signed by people at the very beginning of their careers—or the very end.
While it wasn’t explicitly stated, Alex felt that her job was at risk if she didn’t sign the NDA in a timely manner. In most parts of Canada, employers can terminate employees without cause, meaning that it is possible to legally fire an employee for not signing a confidentiality agreement. This power imbalance leads to employees feeling rushed and pressured to sign documents that have the potential for lifelong implications.
Not all NDAs are necessarily predatory: Alex was also asked to sign an NDA for an art gallery she worked at, which sold to famous clients, to protect sensitive information, such as emails and home addresses. She thought the NDA made sense in this context—not only would the gallery not want details like how much they spent on an artwork getting out to the public, they also wouldn’t want that information to be sold to a competing art gallery. Among people I spoke to for this story, many thought signing an NDA that protected sensitive client information was okay, even though they didn’t need a legal agreement to know not to do so. Whereas signing NDAs under duress and pressure to stay silent about political or personal experiences led to a strong sense of unease.
