We won, but nobody heard our story

The dance festival won the recent case taken against it, but has to find €10,000 to pay its costs. Dermot McLaughlin wonders what the case means for other artists and festivals.

Deciding how to describe a performance has not traditionally been a high-risk activity for artists, theatres and festivals such as ours. Is this about to change for the worse?

Earlier this month, Raymond Whitehead lost his civil action against my colleagues and I at International Dance Festival Ireland, but although there has been significant media coverage of the case, our side of the story has not yet been represented in public. The stage at which the case was struck out as being unsustainable meant only Whitehead's side of the case was heard in court.

Whitehead was one of 240 people who, during our 2002 festival, attended a performance by the French artist Jérôme Bel, whose work is highly regarded worldwide. Whitehead claimed, unsuccessfully, that we had breached our contract with him by failing to make clear that the performance involved urination and manipulation of body parts, but he failed to produce in court any other member of the audience to support his case.

Then, writing in this newspaper after his case was struck out, he grossly misrepresented a basic principle in contract law when he stated that the law is weighted against the consumer. The truth is that any ambiguity in a contract is determined in favour of the party who did not draft the contract. It is weighted against the party who drew up the contract, in this case our festival. But the court found that International Dance Festival Ireland was not in breach of contract and that we had misrepresented nothing to him.

Our festival was established through an Arts Council initiative to raise awareness and appreciation of dance. We have carried out this remit successfully and with passion, commitment and expertise from day one. The quality of our artistic programming is excellent and highly regarded within the dance profession here and overseas. We have succeeded in putting Ireland, Dublin and Irish contemporary dance firmly on the international map. This could never have happened without the foresight and support of the Arts Council. We have enriched and improved the environment for dance, dance artists and audiences in Ireland. This year we presented 30 per cent more events than in 2002, filled 70 per cent of our seats and highlighted the fantastic diversity within international dance.

We programme world-class dance that is ambitious, challenging, abstract, entertaining, controversial, difficult, conventional, surprising, shocking and amusing. That's our job. We appreciate that not everybody will respond equally to the work we show.

We take seriously our duty of care to the public. Our brochures are unambiguous about the nature of our programming without describing any work in detail. The court found that Whitehead admitted he had misconstrued the contents of our 2002 brochure, including a photograph of a scrotum and the text on Jérôme Bel, which said: "Everything you think dance is, Jérôme Bel is not." He also admitted under questioning that he had not sought further information on the show, as he liked to attend performances with an "open mind". We now know what can happen if an open mind does not find what it expects.

Other arts organisations could find themselves in our situation as the result of an individual unsuccessfully taking a legal action against them. We estimate this case could cost us around €10,000 in legal and other costs.

We will raise this €10,000 so that none of the taxpayers' money we receive from the Arts Council is used for this purpose. This money is a significant burden for us. Indeed, it could wipe out smaller arts organisations and hurt individuals who are voluntary, unpaid company directors of arts organisations.

This €10,000 could fund one or more elements of our 2006 festival. Many arts festivals in Ireland survive on Arts Council and local authority grants of which are less than €10,000. This is a fragile economy.

Will other Irish arts organisations find themselves in difficulties because of how they describe their work? Will artists and companies baulk at the liability of having to describe their work in terms more suited to consumable goods than to aesthetic intent and experience? Will they decide not to run this new risk?

We hope that no other arts organisation finds itself in our position, technically on the winning side but paying a high price just because of the legitimate exercise of an individual's right to take an unsustainable legal case. We hope that reasonableness will prevail and arts presenters will not be burdened with labelling regulations that undermine some of the greatest attractions of the arts: surprise, challenge, mystery and enjoyment.

We hope that our loyal and growing audience will continue to support our efforts in helping to increase public awareness and appreciation of dance.

Can anyone foresee the day when an arts organisation is taken to court for presenting a "controversial" performance that is not controversial enough for a dissatisfied customer?

The absurd conclusion of this is that programme notes, in the interests of consumer protection, will have to list contraindications: "If you attend this show you may experience pleasure, outrage or surprise; do not drive home, just ring your lawyer . . ."

Dermot McLaughlin is chairman of International Dance Festival Ireland