Dawson, Sophie --- "Sexual Assault Complaints and Defamation Law Reform" [2023] PrecedentAULA 45; (2023) 177 Precedent 30

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Sexual assault complaints and defamation law reform

By Sophie Dawson

Recent law reform efforts seek to bolster protection for victims of sexual crimes who approach authorities. However, there are no clear protections for media organisations who publicise the allegations. Truth can be difficult to prove as a defence given the private and often contested context of most or many sexual assaults and much sexual harassment. This poses a challenge for the media, which has an important role to play in this area.

SEXUAL CRIMES AND THE PROBLEM OF UNDER-REPORTING

According to the Australian Bureau of Statistics (ABS), 23 per cent of Australian women and 8 per cent of Australian men over the age of 18 have experienced sexual assault in their lifetime; moreover, reported sexual assaults against girls and women are increasing.^[1]

The reporting of such crimes is essential for the purpose of their deterrence.

However, sexual crimes are chronically under-reported. The ABS found that only 13 per cent of sexual assaults are reported. The reasons for this are varied and include victims wanting to deal with it themselves, fear of the perpetrator(s) and embarrassment. The fear of being sued for defamation by the perpetrator(s) could also have a significant effect in discouraging reporting.

These problems were considered as part of the recent defamation law review, instigated by Australia’s Attorneys-General. The most recent step in that process in Victoria is the consultation paper, Model Defamation Provisions Review Stage 2 Part B (Defamation Review Paper), which noted that:

‘More than four out of five Australian women have been sexually harassed at some point in their lives, with rates increasing for women with disabilities, Aboriginal and Torres Strait Islander women, and LGBTIQ+ women.’^[2]

Almost one in four Australian women have experienced actual or attempted sexual assault.^[3]

DEFAMATION LAW DEFENCES IN A SEXUAL CRIME CONTEXT

Essentially, anything a person publishes about another identified person that would cause others to think less of the latter is defamatory, and a defamation action can be sustained unless a defence is available.

Communication to even one person other than the subject of the allegation is enough to establish publication. And identification can be established even where readers need to draw upon facts that they obtain from other sources to work out who is being talked about. Thus, allegations of sexual assault and sexual misconduct are generally actionable unless there is a defence.

The defence(s) available depend very much upon context.

Common law qualified privilege defence

In the context of reporting sexual assaults to the proper authorities (that is, the police in the case of sexual assault or the HR team in the case of workplace harassment), the common law qualified privilege defence is key. This defence is available whenever a person makes a communication pursuant to a duty or interest to a person who has a corresponding interest in receiving that communication: Roberts v Bass.^[4] It does not protect communications to third parties who do not have the relevant legitimate interest.

It is accepted that the common law qualified privilege defence is available when victims of crime make allegations to police and other relevant authorities, as the relevant legal, moral or social duty applies. In Dillon v Cush,^[5] the High Court confirmed that the defence is also available in relation to workplace allegations (though in that case the allegation was of an affair, not sexual harassment).

The qualified privilege defence can be defeated by evidence that an allegation was made maliciously (with a motive or purpose inconsistent with the relevant duty or interest) and a court will almost invariably infer malice when it is proved that the communication was made with knowledge that the allegation was false.^[6] The defence is not available in relation to publications to people who don’t have the requisite legitimate interest (for example, friends on Instagram, and perhaps also in person).^[7] Statutory qualified privilege theoretically has a role to play in such cases. As a matter of practicality though, the common law defence is much more robust once an occasion of privilege is established. For that reason, from a defamation standpoint under current principles, it is prudent for victims to be careful about what they say and to whom to avoid a possible defamation action in which they may have to rely upon substantial truth or the statutory qualified privilege (which, as discussed below, has been applied with a high bar as to ‘reasonableness’) instead of common law qualified privilege.

The extent of the protection of common law qualified privilege in a workplace-reporting context was tested in Cush v Dillon.^[8] In that case, an inaccurate communication was made to the chair of the board of a company to the effect that it was common knowledge in the company that the plaintiffs, who were a board member and a manager of the company, were having an affair. The High Court found that the defence of common law qualified privilege was available. In their joint reasons, French CJ, Crennan and Kiefel JJ described the requirement for reciprocity of duty and interest as ‘the hallmark of the common law defence of qualified privilege’,^[9] and found that the requirement was met in that case because the rumour of the affair was ‘intrinsically intertwined with’ the concerns the defendant raised about the nature of the relationship between members of the board and staff, and how complaints about the grievance process were dealt with. To have allowed the chairperson to remain ignorant of the existence of the (inaccurate) rumour would have been in breach of the defendant’s duty as board member.^[10]

Defence of fair and accurate reports

The defence of fair and accurate reports is also important in relation to media reporting of court cases. In general, there are statutory restrictions that prevent the media from identifying the victims of sexual assault in sexual assault cases unless they consent. However, the media remains free to report on those cases, which is important for reasons discussed more fully below. If a report of a court case is expressed as such and is balanced, in the sense of being accurate and giving the same overall impression to a reader as he or she would have if he or she attended the hearing, then the defence is available.^[11]

Substantial truth defence

Outside of the court-reporting context, the most important defence for media publications is substantial truth, which is a defence under Australia’s Uniform Defamation Laws and at common law. In the case of serious allegations such as sexual assault, the Briginshaw^[12] test applies, which means that a court must be particularly careful when reaching factual findings, discussed most recently by Bisanko J in Roberts-Smith v Fairfax Media Publications Pty Limited (No 41).^[13] To prove an allegation of sexual assault true, it is necessary to have an eyewitness (the victim most likely the only or main one) and/or written or oral evidence of admissions by the person accused of the crime. As noted above, often in the case of sexual assaults only the victim and perpetrator(s) are present. This makes predicting the outcome of a matter difficult, which in turn makes publication decisions by media organisations challenging.

Statutory qualified privilege and public interest defences

Statutory qualified privilege is available where a publication is made to recipients with an interest or apparent interest in receiving information on a subject, the matter is published in the course of giving information on that subject to the recipient, and the conduct of the publisher is reasonable in the circumstances: see, for example, s30 of the Defamation Act 1995 (NSW). Australian courts have traditionally been pretty tough when it comes to applying the standard of reasonableness to journalists, as a result of which successful statutory qualified privilege defences have been few and far between for media defendants.

Partly for that reason, a new public interest defence has been enacted. The public interest defence is available if the defendant proves that the relevant defamatory matter concerns an issue of public interest, and the defendant reasonably believed that the publication of the matter was in the public interest.

In the UK, the public interest defence has proved useful in at least one matter involving a sexual assault allegation. In Economou v DeFreitas,^[14] the UK version of the public interest defence was sustained in relation to a father who went to media outlets with concerns about the Crown Prosecution Service (CPS) taking over a prosecution against his daughter in which she was accused of falsely accusing the claimant of rape. She died of suicide shortly after the CPS took over the prosecution.

The parties agreed that the publication was in the public interest and that the father believed it was in the public interest. The Court found that the father acted reasonably because he deliberately avoided naming the claimant, it was difficult see how he could get his message across without defaming the claimant (who could be identified by some people who knew relevant facts), the tone of what he wrote and said was measured and responsible, he had no reason to believe the claimant would be widely identified, and the father had some firsthand knowledge of matters as he had also conducted further investigations into the merits of the case against his daughter.

It is yet to be seen whether the public interest defence or statutory qualified privilege will come to play a similar role in Australia.

ENCOURAGING VICTIMS TO REPORT WITHOUT FEAR

The Defamation Review Paper proposes to extend absolute privilege to reports of personal crime to police and other relevant bodies.^[15] This would enable victims and others to report such crimes with much greater defamation protection than is currently afforded by qualified privilege. Absolute privilege provides a complete defence once an occasion of privilege is established. In contrast to qualified privilege, an absolute privilege defence cannot be defeated by evidence of malice.

Importantly, however, the Defamation Review Paper does not propose to extend the defences available in respect of reports to employers, nor in relation to public statements by the police and other relevant bodies.^[16] Nor does it propose any additional defences or other protection for reporting such offences to or by the media.

DOES MEDIA HAVE A ROLE TO PLAY IN REPORTING SEXUAL CRIMES?

Some may say that as long as victims and others can report sexual crimes to the authorities, the issue is adequately dealt with, so media reporting is unnecessary.

The difficulty with such an argument is that media reporting often plays a pivotal role in situations, especially where there is an ongoing abuse of power or institutional failure. It is sometimes necessary for the media, often referred to as the ‘fourth estate’, to expose institutional failures for them to be addressed. Reporting can fundamentally change institutions, as exemplified by Four Corners’ ‘Moonlight State’, which uncovered police corruption, resulting in the Fitzgerald Inquiry and changes to the Queensland Police Service.

Another example is the New York Times article of 5 October 2017, ‘Harvey Weinstein paid off sexual harassment accusers for decades’, which played an important role in creating an environment in which women felt empowered to press allegations about Mr Weinstein’s conduct, including multiple alleged sexual assaults. Without that publicity, women may not have taken the steps that resulted in Mr Weinstein being brought to justice. Mr Weinstein has reportedly been convicted of offences including rape, and has been sentenced to 23 years of imprisonment in New York, followed by 16 years in California. ^[17] Those events and the #MeToo movement generally have made it clear that sexual harassment in the film industry and elsewhere should not be tolerated.

Closer to home, media reporting in relation to allegations of sexual harassment (which were denied) in the parliamentary workplace environment led to a heightened awareness of the issues, and substantive change. The publicity given to the allegations led to a review conducted by Sex Discrimination Commissioner Kate Jenkins. Her report, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (2021) found that sexual harassment was common in the parliamentary workplace environment. It found that 77 per cent of people in such workplaces had either experienced, witnessed or heard about bullying, sexual harassment and/or actual or attempted sexual assault in parliamentary workplaces, and 37 per cent had personally experienced bullying.^[18]

One contributor quoted in the report pointed out that the lack of safety in those workplaces had significance for democracy, not just for the individuals concerned. He or she said:

‘When you make the workplace safer ... you open up the possibility for us getting more people into the roles who are representative of Australia more broadly and that then flows through to a better policy making process and a stronger democracy’.^[19]

The report recommended numerous changes, accepted by the then-Government and implemented by the current Federal Government, to make such workplaces more secure.

Anonymity and identity

Statutory restrictions on publication in relation to sexual assault proceedings mean that victims of sexual assault generally have the option to stay anonymous.

However, there is little doubt that publicity which personalises an issue evokes greater public sympathy and concern than anonymised reports. There is arguably, therefore, a public interest in victims choosing to identify themselves, including in the media. By doing so, they raise public awareness of issues, and may also inspire other victims of other similar conduct to come forward to authorities and others.

As soon as a victim is identified, there is a possibility that the alleged perpetrator will also be identified to those who are aware of relevant facts. The perpetrator can then sue for defamation in respect of publication to persons who do not have a sufficient interest for qualified privilege purposes for that defence to be available. As noted above, truth and other defences can be difficult to prove.

The issues are not straightforward: plainly, an allegation that a person has committed a sexual assault is life changing for the person against whom that allegation is made (as it is for the victim).

It is to be hoped that the strong public interest considerations will be taken into account by Australian courts if and when they consider the possible application of public interest defences in respect of publications by alleged victims that extend beyond police and other authorities – the subject of the current absolute privilege reforms.

In the meantime, media outlets seeking to report on these issues tread a very fine line. Careful consideration should be given every time to whether identification of an alleged victim may also identify the alleged perpetrator, and journalists should take care to seek and, if obtained, include any denials from the alleged offender where possible while at the same time taking care not to defame the victim. If charges are laid, then care must also be taken to avoid any possibility of committing sub judice contempt, which arises when a publication creates a substantial risk of prejudice to a criminal proceeding.

As previously noted, there are also statutory restrictions that operate to prohibit identifying the alleged victim, and sometimes the alleged perpetrator, in relation to proceedings.^[20] During the court process, the safest course is to stick to fair reports of court proceedings. The same is true for any victims wishing to publish their allegations beyond confidential disclosures to doctors, counsellors and authorities (in respect of whom qualified privilege is likely to be available).

CONCLUSION

Stage 2 Part B of the defamation law reforms will increase protection for victims reporting to the police and other relevant authorities but will not address wider publications.

There is scope for the public interest defence, and perhaps also statutory qualified privilege, to provide some protection in relation to publications by victims and the media which extend beyond recipients such as doctors and the police. However, the extent (if any) of such protection is yet to be determined.

In the meantime, journalists and others who publish stories that go beyond court reports must take extreme care to avoid the possibility of committing contempt, breaching statutory restrictions, or defaming either the victim or the perpetrator(s). This may well affect the extent of reporting in this important area.

Sophie Dawson is a media lawyer and a partner at Bird & Bird. She is a co-author of the Thomson Reuters looseleaf Media & Internet Law & Practice. PHONE [phone] EMAIL [e-mail].

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^[1] Australian Bureau of Statistics, Sexual Violence – Victimisation (24 August 2021) <https://www.abs.gov.au/articles/sexual-violence-victimisation>.

^[2] Victoria State Government, Model Defamation Provisions Review Stage 2 Part B (Defamation Review Paper), August 2022, 9, citing Australian Human Rights Commission, Everyone’s Business: Fourth National Survey on Sexual Harassment in Australian Workplaces 2018, 7.

^[3] Ibid, 8.

^[4] [2002] HCA 57; (2002) 212 CLR 1 (Roberts).

^[5] [2010] NSWCA 165 (Dillon).

^[6] Ibid.

^[7] Dillon, above note 5.

^[8] [2011] HCA 30; (2011) 243 CLR 298 (Cush).

^[9] Ibid [11].

^[10] Ibid [16].

^[11] See, eg, Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, 62.

^[12] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

^[13] [2023] FCA 555, [97]–[116].

^[14] [2018] EWCA Civ 2591 (Economou) 87.

^[15] Defamation Review Paper, above note 2, 6.

^[16] Ibid, 26.

^[17] ‘Harvey Weinstein sentenced to 16 additional years for LA rape conviction’ The Guardian (24 February 2023) <https://www.theguardian.com/world/2023/feb/23/harvey-weinstein-los-angeles-rape-conviction-sentencing>.

^[18] Australian Human Rights Commission, Set the Standard: Report on the Independent Review into Commonwealth Parliamentary Workplaces (November 2021) 108.

^[19] Ibid, 29.

^[20] See eg ss4 and 578A of the Crimes Act 1900 (NSW), s71A of the Evidence Act 1929 (SA).