#MeToo exposes problems with Australia’s defamation laws

Where are we at with the seismic attitudinal shift that #MeToo promised? It has been a year since Harvey Weinstein was exposed as a sexual predator, when the movement launched onto the global stage and began influencing mainstream thought and behaviour.

Allegations that arrived via #MeToo have been the source of overdue downfall for powerful men who behaved appallingly. The result has been individual and institutionalised sexual harassment and abuse brought to light, and demands for industries where such abuse is rife to respond accordingly.

This shift would not be happening without the testimonies of individual women calling out individual men. Their testimonies have put faces to abusers and survivors of sexual assault, and helped develop the narrative to understand how such behaviour can be endemic.

But in Australia, where defamation laws are among the most stringent in the world, calling out sexual behaviour presents unique challenges. We have a robust set of legal measures in this country which throw up barriers to publicly, and sometimes even privately, outing an abuser.

A number of high-profile cases have been brought before the courts in Australia in the past year – you can probably easily call them to mind. But they are playing out in a curious role reversal. The defendants in these cases are the women who claim to have been abused, while the men who allegedly perpetrated that abuse are the plaintiffs.

The UTS Centre for Social Justice and Inclusion gathered a cohort of women experts in this subject matter, lawyer Sophie Dawson, journalist Jenna Price, and Industry Professor Nareen Young, to examine how our defamation laws are affecting the #MeToo movement, and justice, in Australia.

The toughest defamation laws in the world

In the US – undeniably the focal point of the #MeToo spotlight so far – if a public figure believes they have been defamed, the onus is on them to prove the defaming statement is false, and was published with malicious intent. In Australia, the reverse is true; once a defamation claim is made the onus rests upon the person who made the statement to defend their actions, usually by proving their truth.

“We’ve got an implied constitutional freedom of speech in relation to government and political matters. But it’s quite different to the US First Amendment, and it doesn’t provide the same amount of protection,” explains lawyer Sophie Dawson, Partner at Bird & Bird and a specialist in media defence of defamation cases.

“It has become very topical because we’re now very much in a global media market, and we’re all consuming media on a global basis. There are real concerns about whether as a country our defamation laws are discouraging people from publishing here and encouraging them to go to more protected environments like the US.”

Speaking at our event in October this year, Dawson said that when it comes to defending a defamation case in Australia, there are two available defences which are of particular importance in reference to issues around #MeToo: common law qualified privilege, and substantial truth.

Common law qualified privilege applies where someone has a legal, moral or social duty to disclose information, and the information is communicated to another person whose job it is to deal with that information. For example, reporting something to the police. Even if it may not be true, as long as there was no malicious intent, the person who made the communication is protected by recourse to a common law qualified privilege defence.

The other available defence is substantial truth. To establish truth, the defendant has to prove on the balance of probabilities that what they have said is true. And where the contested truth involved sexual harassment or assault – which often occurs in a private setting where an unequal power balance is at play? Dawson was succinct: “In the #MeToo context, that can of course be very difficult.”

Are our laws silencing women?

Jenna Price, journalist, academic and co-founder of Destroy The Joint has written extensively on how the threat of defamation intimidates women into silence.

She is supportive of the media’s role in redressing justice in cases of sexual assault, where the abuser is otherwise protected by their position, power or other social and economic factors, “How else do you get some kind of protection and support, unless you go to the media?” she asks.

“There has been a tremendous chill this year [as a result of high-profile defamation cases]. There have been so few stories published about sexual harassment, and you know that has got to be about the defamation laws … We’ve got to have a different kind of process here, we’ve got to protect women. There’s a real problem for supporting women through the legal system”

Dawson agrees: “Because of these high-profile, publicised cases, some people might be worried about talking about things that have happened to them, and they shouldn’t have those worries about reporting them to the relevant people, or getting the help that they need.”

Women are also fearful of the impact such allegations could have on their careers. As journalist and #MeToo advocate Tracey Spicer puts it, “women fear that if they speak out, they will never work again.”

Trial by Twitter is not a substitute for justice. But the media does play a role in its capacity as the fourth estate of providing quality investigative journalism into issues where politics, the judicial system, or other institutions fail to deliver equal treatment or justice. From historical events like the civil rights movement to coverage of international wars – think of the Vietnam War or the War in Iraq – down to day to day politics, the media has an acknowledged and well-documented power to both sway public opinion and to uncover truth.

There are direct examples, including one article written in 1991 and never published, that demonstrate a media gag in action on this topic.

Several media commentators have stated that the iconic Weinstein case would most likely not have seen the light of day if it had happened here in Australia, because media outlets are intimidated by the threat of defamation and the onerous cost proving, through legal process, truth of claims involving sexual harassment and assault. That sets a high bar, because it requires people willing and able to come forward and give evidence. There is no defence available to media reporting on public figures, or in the public interest.

Sexual harassment in the workplace

“I get concerned about the lack of distinction made in public discussion between workplace sexual harassment and general bad behaviour,” said Nareen Young, Industry Professor, Indigenous Policy (Indigenous Workforce Diversity) at Jumbunna Institute of Indigenous Education and Research and the Indigenous People and Work Research and Practice Hub.

“They are two distinctly different things. So the question needs to be, how do we as a community ensure that the right distinction is made? Because the law is different in terms of private and workplace.”

The distinction matters, because where harassment takes place in a work context, the victim usually has access to organisational policies and procedures. But when reports tell stories of women harassed in their workplaces, then dragged over hot coals by the legal system, it impacts other women’s willingness to come forward through the official channels at their workplace.

According to the 2016 Australian Women in Media Report from the Media Arts and Entertainment Alliance, 48 per cent of women in that industry reported experiencing intimidation, abuse or sexual harassment in the workplace, but less than half of them felt confident to report these incidents.

Australian workplace lawyers are calling out this chilling effect, and The Sex Discrimination Commissioner Kate Jenkins has even weighed in on the debate, writing in an article published in the Sydney Morning Herald this month, “I can comment on a common theme running through at least three of the high profile cases in 2018 - the shocking treatment of the women involved.” Jenkins, who is currently leading the National Workplace Sexual Harassment Inquiry, cites repeated concerns heard about the personal cost of raising sexual harassment complaints in the workplace, and is calling for employers to suspend non-disclosure agreements to allow victims of sexual assault to contribute to the Inquiry.

Where to from here?

“For as long as I can remember we’ve talked about it among ourselves, with shame and with reticence, but over the last year that has changed,” says Young.

“A year ago, I wouldn’t have said that this was an incredibly important part of law reform around sexual harassment. I think there are lots more fundamental things that we need to do in addition to examining defamation laws. But we know that the landscape has changed unalterably in the last year, and that is in my view because of the capacity for this to be something that women could talk about. That occurred very directly as a consequence of women in the US being able to name their abuser.”

It is untenable that anyone who has been the victim of sexual abuse, assault or harassment, should feel constrained by the legal system meant to protect them. The burden of evidentiary proof that Australian victims of sexual harassment and assault face is facilitating their silence. A legal system rooted in an older world order premised on property rights, and a defamation act that pre-dates social media, is ill-equipped to deal with these issues.

Women around the world now feel confident to speak out about abuse and harassment, knowing they will be heard and perpetrators have at least some chance of being held to account. The #MeToo movement provided that solidarity. Is it, and should it be, a platform for also airing allegations?

That is something we need to navigate very carefully as a society.  We must do so in a way that supports and upholds our justice system rather than undermines it.

To hear the full discussion of this topic, you can listen to episode 7 of our podcast, ‘After #MeToo: Stories of Social Change. The series is produced in partnership with 2SER, and explores issues around the #MeToo movement in Australia through women’s perspectives and experiences.