Ailwood, Sarah --- "Defamation Law Reform in the #metoo Era" [2024] UNSWLawSocCConsc 14; (2024) 18 UNSW Law Society Court of Conscience 97

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DEFAMATION LAW REFORM IN THE #METOO ERA

Sarah Ailwood^*

I Introduction

The ignition of ‘MeToo’ as a hashtag in October 2017 transformed a phrase that Tarana Burke originated in a grassroots support movement for girls and women of colour who were victim-survivors of sexual violence, into a movement driven by the mass publication and witnessing of stories of violence against women and calls for justice for victim-survivors. #MeToo has developed into a global movement that continues to provoke and influence law and policy responses in myriad diverse ways that continue to unfold.

In the Australian context, the #MeToo movement triggered a string of defamation threats and cases against media publishers who published #MeToo stories, and victim-survivors who spoke publicly about their alleged experiences of sexual violence. This trend began in December 2017 when Geoffrey Rush launched defamation proceedings against Nationwide News, publishers of the Daily Telegraph, for publishing stories alleging sexually inappropriate conduct by Rush in the context of a Sydney Theatre Company production of King Lear.^[1] Since then, defamation proceedings have been threatened or pursued by a series of high-profile men in response to publications alleging they engaged in sexually inappropriate behaviour towards women, including Craig McLachlan, Chris Gayle, Luke Foley, Christian Porter and Andrew Laming.^[2] Victim-survivors of gender-based violence, academics, advocates and media publishers argue that the threat and reality of defamation proceedings have exerted a ‘chilling’ effect on the publication of #MeToo stories in Australia and hampered their capacity to publicise stories of violence against women, particularly where an alleged perpetrator is or may be identifiable.^[3]

The possibility of reforming defamation law to reflect the changing times of the #MeToo era has been raised in the context of a number of law reform processes, including the Australian Human Rights Commission’s (‘AHRC’) Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report (2020) (‘Respect@Work Report’) and Stage 2 Part B of the Defamation Law Working Party (‘DLWP’) Review of the Model Defamation Provisions (‘MDP Review’) overseen by the Standing Council of Attorneys-General (‘SCAG’) and its predecessors.^[4] Defamation law and debates surrounding its reform are frequently pitched as a contest between the interests of media publishers, the values of freedom of speech and, in the #MeToo context, the desirability of publicly identifying alleged perpetrators of sexual violence on the one hand, and protecting the reputation of alleged perpetrators and holding publishers to account on the other. Yet this division of interests implies that it is only parties who fall into one of these categories who are affected by or have a stake in defamation law. The position and interests of victim-survivors of gender-based violence within defamation law have been overlooked within law reform processes, regarded as concomitant with the interests of media publishers or, at best, marginalised within law reform proposals. Yet the #MeToo movement has shed light on how defamation law intersects with the experiences, needs and interests of victim-survivors of gender-based violence beyond the media and its capacity to publish #MeToo stories.

This article analyses the ways in which defamation law intersects with victim-survivors’ experiences of gender-based violence and outlines recent law reform processes, legislative changes and their potential consequences in the context of the #MeToo movement. The article begins by considering the structure of the tort in Australian law and how the presumption of falsity works to silence victim-survivors, before turning to consider the defences of absolute and qualified privilege and the public interest. The article concludes with reflections on the use of defamation trials as a proxy for sexual violence trials and the need for protection of victim-survivor witnesses within the trial process.

II The Structure Of The Tort

In Australian law, there is no requirement for a defamation plaintiff to prove that a publication is false; all that is required is proof of the elements of publication, identification, defamatory meaning and, as of 1 July 2021, serious harm.^[5] In this respect Australia resembles the United Kingdom and differs from the United States, where a plaintiff is required to prove that the publication is false, and where the publication of #MeToo stories has triggered fewer defamation claims. In Australia, by contrast, it is relatively straightforward for a publicly-identified alleged perpetrator of sexual violence to commence proceedings against a victim-survivor or a media publisher. As Michelle Harradine argues, Australian law contains an implicit ‘presumption of falsity’ – an assumption that the defamatory publication is false – which benefits the plaintiff and ‘places the burden of proof on defamation defendants to establish the substantial truth of the matters complained of as a defence’.^[6] Reliance on the ‘truth defence’^[7] makes defamation claims against victim-survivors and media publishers who publicly identify alleged perpetrators particularly difficult to defend because the subject matter of the publication – sexual violence – is notoriously difficult to prove within the adversarial process.

The structure of the tort within Australian law makes it easy for publicly-identified perpetrators of gender-based violence to commence defamation claims, and difficult for victim-survivors and media publishers who publish #MeToo stories to defend them. For many media publishers and victim-survivors, the publication of #MeToo stories identifying perpetrators within this legal matrix represents an unacceptable risk, and the effect of this is the silencing of victim-survivor voices and a ‘chilling’ effect on the trajectory of the #MeToo movement in Australia.^[8] It is worth noting in this context that the success of the truth defence in the highly-publicised case Lehrmann v Network Ten (‘Lehrmann’)^[9] is unlikely to give comfort to either victim-survivors or media publishers in the publication of #MeToo stories. In that case, the plaintiff, Bruce Lehrmann, brought a claim against Network Ten in relation to a television interview in which Brittany Higgins alleged that she had been sexually assaulted in Parliament House. Lehrmann successfully argued that he was identifiable within the interview and that it was defamatory. A range of factors underpinned the success of Network Ten’s truth defence, including the quantity of evidence available to the defence (including extensive audio-visual evidence and the testimony of multiple third parties), the failure of the plaintiff to offer a plausible alternative, Higgins’ credibility as a witness in her account of the sexual assault, and the uniquely trauma-informed approach to victim-witness credibility taken by Lee J. In terms of the risk matrix that confronts media publishers and victim-survivors in deciding whether to publish #MeToo stories, Lehrmann reinforces the very high standard that media publishers must meet to establish the substantial truth of a publication in which an alleged perpetrator of sexual violence is identified or identifiable.

III Defences

A Absolute and Qualified Privilege

Beyond cases that have attracted media attention, the #MeToo movement has exposed in new ways defamation law’s silencing effect on victim-survivors of gender-based violence because of its wide application to a range of situations where they may disclose their experience to another person, including where they may seek protection from violence or the use of a legal process designed to provide a remedy or redress. A complete and indefeasible defence of absolute privilege is available to publishers of otherwise defamatory publications within parliamentary and litigation contexts, and to persons and bodies specified by state and territory legislatures in a Schedule to the Act;^[10] in these circumstances, any defamation claim is likely to be summarily dismissed.^[11] Absolute privilege does not protect victim-survivors from defamation claims in relation to their communications to workplace managers and colleagues, frontline support service workers, bodies empowered to investigate human rights complaints,^[12] or, until recently, police officers:^[13] all people to whom victim-survivors of gender-based violence are known – and indeed encouraged – to turn to for support, in addition to family, friends and wider social networks.^[14] If a defamation claim is brought against a victim-survivor in relation to a disclosure made in these contexts, the defence of absolute privilege is not available. It is likely that the victim-survivor would need to argue the truth defence, which presents the challenges outlined above, or alternatively the defences of qualified privilege or the public interest (discussed below). Each of these defences requires a full trial, with the concomitant costs in terms of time, money and personal stress.

The threat of defamation, the complexity of the defences available to victim-survivors (if known)^[15] and the burdens and costs presented by such litigation, may deter many victim-survivors from reporting their experiences to employers, the police and complaints-handling agencies. Research by Featherstone and Bargon reveals that legal professionals representing victim-survivors of workplace sexual harassment report a rising trend in ‘their clients receiving vexatious defamation concerns notices when sexual harassment is raised with employers’,^[16] which often leads to the withdrawal of the complaint. The destructive effects of defamation litigation for victim-survivors are evident in the case of Sherman v Lamb.^[17] A victim-survivor of coercive control in a relationship that had recently ended reported the violence to a police officer and was successfully sued for defamation by the perpetrator at trial. Jarro DCJ denied the defence of qualified privilege because aspects of the victim-survivor’s report to police concerned conduct that is not an offence, because ‘police have no interest in or a duty to receive gossip or adverse commentary’,^[18] and because his Honour found that the victim-survivor’s report was malicious. All of these findings were overturned on appeal,^[19] but by then the costs of the litigation had forced the victim-survivor to declare bankruptcy.

The ‘chilling’ effects of defamation law in cases of gender-based violence have been acknowledged and analysed in law reform processes covering both sexual harassment and defamation law reform. In its Respect@Work Report,^[20] the AHRC noted that in ‘consultations and submissions, the Commission heard that the manner in which Australia’s defamation laws play out, are a contributing factor to discouraging sexual harassment victims from making complaints’.^[21] The AHRC noted, however, that the operation of defamation provisions was beyond the scope of its Terms of Reference and urged the then Council of Attorneys-General (‘CAG’), which was then reviewing the Model Defamation Provisions, to consider their operation ‘as they relate to workplace sexual harassment matters’.^[22] Part B of Stage 2 of the MDP Review, announced by CAG in March 2021 with the release of a Discussion Paper prepared by the DLWP, takes up the AHRC’s invitation by considering the adequacy of the existing defence of qualified privilege and the possibility of extending the defence of absolute privilege to statements made to police and statutory investigation agencies, and to complaints of unlawful conduct made to employers and professional disciplinary bodies.^[23]

In the resulting ‘Review of the Model Defamation Provisions Stage 2 Part B – Policy Options’ paper released in August 2022,^[24] the DLWP proposed extending the defence of absolute privilege to disclosures made to police officers where they are acting in an official capacity. Citing Sherman v Lamb, the extension of the defence of absolute privilege to reports to police officers should prevent victim-survivors of gender-based violence from being sued in defamation or having defamation threats made against them.^[25] This measure was agreed to by SCAG in September 2023 and is in the process of being implemented across State and Territory jurisdictions.^[26] The DLWP also recommended that absolute privilege be extended to the reporting of unlawful personal conduct (such as sexual harassment) to complaints-handling bodies.^[27] Guidelines have been published to assist State and Territory jurisdictions, but legislation is yet to be introduced to extend absolute privilege to complaints-handling bodies.^[28]

Further, SCAG and the DWLP declined to extend the protection of absolute privilege to victim-survivors of workplace sexual harassment reporting the harassment to their employers.^[29] In so doing, SCAG and the DWLP failed to support the key constituency the AHRC raised as in need of protection in the Respect@Work Report. Victim-survivors and bystanders seeking to report sexual harassment internally within their workplaces remain susceptible to threats and actions for defamation.

B Public Interest Defence

In addition to the truth defence and absolute and qualified privilege, the other defence potentially of relevance to victim-survivors of gender-based violence is the ‘public interest’ defence, which commenced on 1 July 2021.^[30] This defence requires a publisher to establish that the publication concerns an issue of public interest and that they reasonably believed that the publication is in the public interest. David Rolph argues that the efficacy of defences of this kind ‘depends in part upon judicial approaches to their application. They can be applied strictly or beneficially, with the latter approach being preferable, being more consistent with their beneficial intent in allowing greater freedom of speech’.^[31] As the #MeToo moment increasingly makes gender-based violence, and particularly sexual violence and harassment against women, a matter of public interest, as well as a matter the reporting of which is increasingly regarded as in the public interest, this defence may in the future be deployed by victim survivors or media publishers seeking to publish #MeToo stories, including where they seek to identify alleged perpetrators.

Such a potential liberation to publish #MeToo stories is arguably a two-edged sword. On the one hand, it may liberalise the capacity of media publishers to propel the #MeToo moment through public interest reporting of sexual violence, harassment and other forms of misconduct. Additionally, the public interest defence may also assist victim-survivors of gender-based violence to publish their own #MeToo stories. In a 2023 UK case, a similar defence was successfully used by a victim-survivor of sexual abuse who published an account of her experience and identified the perpetrator on a blog, in an email and on social media, to defend a libel claim brought against her by the alleged perpetrator.^[32] The judge accepted that the need to protect women from sexual abuse was a matter of public interest, and that in the light of the inadequacy of the police response to the defendant’s complaint and the #MeToo moment, the publication was also in the public interest.^[33]

However, it is also possible that, in potentially making it easier for media publishers to publish #MeToo stories, the introduction of the public interest defence could also increase the risk that #MeToo stories will be published without the knowledge, involvement or consent of the victim-survivors at the centre of the allegations. As I have argued elsewhere, in the Australian context #MeToo has been weaponised – mostly by men seeking to inflict reputational damage on other men – through the publication of allegations of sexual misconduct without the knowledge, involvement or consent of the victim-survivor, in ways that inflict personal harms on victim-survivors for which law provides no remedy.^[34]

Although the defence is yet to be tested in the context of a #MeToo publication, early indications are that the judiciary will set a high bar for media publishers in determining whether the publication is in the public interest. The defence has been applied by Lee J in Russell v Australian Broadcasting Corporation (No 3)^[35] (‘Russell’) and discussed in obiter, also by Lee J, in Lehrmann. Although his Honour noted the intention of the legislature to expand the scope of defences available to publishers, and particularly to media publishers, he set particularly high journalistic standards in both cases. In Russell, his Honour found that the ABC’s journalistic standards were insufficiently rigorous to found a reasonable belief that the publication was in the public interest, and in Lehrmann his Honour set a similarly high standard, evaluating decision-making by journalists and media publishers according to the Media, Entertainment and Arts Alliance Journalist Code of Ethics. In the #MeToo context, this close attention to journalistic rigour and ethics could protect victim-survivors who do not want their experiences broadcast before the public, with or without identification, but may also operate as a barrier to an increased publication of #MeToo stories and so do little to address the ‘chilling’ effect of defamation law.

IV The Victim-Survivor As Witness:

Defamation As Proxy For Sexual Violence Trials

Both Rush v Nationwide News^[36] (‘Rush’) and Lehrmann were defamation cases that, because of the structure of the tort and operation of the truth defence, acted as a form of proxy for sexual harassment and sexual assault cases. Yet the victim-survivors who acted as witnesses in those trials enjoyed none of the courtroom protections, such as giving evidence via a remote room, audio-visual recording of evidence and having a support person present that, as victim-survivors of alleged sexual violence, they would be entitled to in criminal proceedings. The brutality with which the adversarial system inflicts additional harm on victim-survivors within defamation cases was starkly revealed in Rush, in which the victim-survivor endured two days of examination-in-chief and cross-examination. Her allegations about Mr Rush’s behaviour, her motivation for testifying, her professionalism as an actress and her mental health were openly challenged by both counsel and the presiding judge, Wigney J. As I have argued elsewhere, Wigney J then went on to shred her credibility in a judgment laden with assumptions and myths about victim-survivors of sexual harassment and the men who perpetrate it.^[37]

In Recommendation 39 of the Respect@Work Report, the AHRC recommended that the CAG ‘consider how best to protect alleged victims of sexual harassment who are witnesses in civil proceedings, including but not limited to defamation proceedings’ and cited measures including confidentiality and suppression of witness identity as well as safeguards such as a closed courtroom, giving evidence from a remote room, audio-visual recording of evidence, having a support person present and being protected from cross-examination by a self-represented party.^[38] These issues were incorporated within the DLWP’s Stage 2 Part B review of the MDPs.^[39] The Working Party ultimately found that protections were thin and inconsistent across the jurisdictions, but that ‘there is not a clear evidence base to demonstrate the extent to which issues have arisen relating to the availability of procedural protections in civil proceedings for victims and survivors of sexual harassment ... other than the findings of the Respect@Work Report and several high profile cases’.^[40] This evidence alone apparently being insufficient, State and Territory governments are now at liberty to implement or ignore protections for sexual harassment victim-witnesses as they see fit. The NSW Judicial Commission Civil Trials Defamation Bench Book, last updated in June 2024, contains no advice to judges regarding courtroom protections for victim-witnesses of sexual harassment.^[41]

The allocation of Recommendation 39 to an ad-hoc Working Party under the direction of SCAG, rather than incorporating this reform in the Review of Model Defamation Provisions, will likely result in variable reforms across State and Territory jurisdictions if, indeed, any are enacted. This means that the possibility of defending a defamation claim by giving evidence and being cross-examined about sexual violence by the alleged perpetrator likely continues to be a deterrent for victim-survivors who might otherwise speak up about and report their experiences.

V Conclusion

Reforms to Australia’s defamation laws in the changing times of the #MeToo movement have been piecemeal attempts to protect the speech of victim-survivors of gender-based violence wishing to speak either privately or publicly about their experiences. The Australian Human Rights Commission noted the harmful effects of defamation law on victim-survivors of workplace sexual harassment and presented the Standing Council of Attorneys-General with an opportunity to address that harm through both the Defamation Law Working Party and the wider implementation of the Respect@Work Report recommendations. The latter extended the defence of absolute privilege in only the limited circumstances of reporting to police and complaints-handling agencies in ways that most jurisdictions are yet to legislate, and declined to act to extend protections to victim-survivors in defamation trials. Communications between victim-survivors and employers, colleagues, frontline support workers and others they may turn to for support and assistance remain subject to defamation claims. The consequence of these scant reform efforts is that many victims of gender-based violence have little more liberty to speak, or protection when they do speak, than before these processes were initiated. The lack of progress in this area begs the question of when will the law meaningfully change, if not with the changing times of the #MeToo era?

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^* Dr Sarah Ailwood is a Senior Lecturer and Academic Program Director for the School of Law, University of Wollongong.

¹ Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 (‘Rush v Nationwide News’); Nationwide News Pty Limited v Rush [2020] FCAFC 115; (2020) 380 ALR 432.

^[2] McLachlan v Whelan Browne [2019] NSWSC 514; Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838; Christopher Knaus and Michael McGowan, ‘NSW Labor Sources Shocked by Luke Foley’s Decision to Sue for Defamation’, The Guardian (online, 9 November 2018) <https://www.theguardian.com/australia-news/2018/nov/09/nsw-labor-sources-shocked-by-luke-foleys-decision-to-sue-for-defamation>; Porter v Australian Broadcasting Corporation [2021] FCA 863; Laming v Nine Network Australia Pty Ltd [2022] FCA 63.

^[3] Lehrmann v Network Ten (Trial Judgement) [2024] FCA 369 (‘Lehrmann’).

^[4] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 5 March 2020) (‘Respect@Work Report’); Australasian Parliamentary Counsel’s Committee, Model Defamation Amendment (Absolute Privilege) Provisions 2023 (Review of Amendment Provisions, 22 September 2023); see ‘Review of Model Defamation Provisions’, New South Wales Government (Web Page, 29 August 2024) <https://dcj.nsw.gov.au/about-us/engage-with-us/public-consultations/statutory-reviews/review-model-defamation-provisions.html>. See also <https://dcj.nsw.gov.au/about-us/engage-with-us/past-consultations/statutory-reviews/review-model-defamation-provisions.html> for details on the Stage 2 reforms of the MDP’s overseen by the DWP and SCAG. The Standing Council of Attorneys-General was preceded by the Meeting of Attorneys-General and the Council of Attorneys-General.

^[5] Defamation Act 2005 (NSW) s 10A. Note that Western Australia and the Northern Territory are yet to introduce legislation implementing the serious harm requirement.

^[6] Michelle Harradine, ‘Defamation Law and Epistemic Harm in the #MeToo Era’ (2022) 48(1) Australian Feminist Law Journal 31, 32.

^[7] Defamation Act 2005 (NSW) ss 25–6.

^[8] Karen O’Connell, ‘The #MeToo Movement in Australia: Silenced by Defamation and Disbelief’ in Ann Noel and David Oppenheimer (eds), The Global #MeToo Movement: How Social Media Propelled a Historic Movement and the Law Responded (Full Court Press, 2020) 259.

^[9] Lehrmann (n 3); Lehrmann v Network Ten Pty Limited [2024] FCA 369.

^[10] Defamation Act 2005 (NSW) s 27(2)(d).

^[11] Attorney-General (NSW), Review of Model Defamation Provisions – Stage 2 Discussion Paper (Discussion Paper, 31 March 2021) <https://dcj.nsw.gov.au/documents/about-us/engage-with-us/public-consultations/review-model-defamation-provisions/discussion-paper-stage-2.pdf> (‘Model Defamation Discussion Paper’). Note that only New South Wales, the Australian Capital Territory and South Australia have scheduled additional persons and bodies.

^[12] Note that only New South Wales and the Australian Capital Territory extend absolute privilege to human rights complaint-handling bodies. Also note that absolute privilege is extended to complaints to the Australian Human Rights Commission under the Sex Discrimination Act 1984 (Cth) s 111.

^[13] Note that SCAG has agreed to extend the defence of absolute privilege to publications to police officers. This reform is in various stages of implementation in the States and Territories, discussed below.

^[14] Regina Featherstone and Sharmilla Bargon, Let’s Talk About Confidentiality: NDA Use in Sexual Harassment Settlements Since the Respect@Work Report (Report, 6 March 2024) 51.

^[15] Attorney-General (Vic), Review of the Model Defamation Provisions Stage 2 Part B – Policy Options (Discussion Paper, 12 August 2022) 33 (‘MDP Policy Options Paper’).

^[16] Featherstone and Bargon (n 14) 52.

^[17] Sherman v Lamb [2022] QDC 215.

^[18] Ibid [56].

^[19] Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258.

^[20] Respect@Work Report (n 4).

^[21] Ibid 565.

^[22] Ibid 569.

^[23] Model Defamation Discussion Paper (n 11) 83.

^[24] MDP Policy Options Paper (n 15).

^[25] Parliamentary Counsel’s Committee, Parliament of Australia, Model Defamation Amendment (Absolute Privilege) Provisions 2023 (Explanatory Note, 25 September 2023) 2.

^[26] Standing Council of Attorneys-General, Communique (Public Communique, 22 September 2023). The defence has been extended to reports to police in New South Wales (Defamation Act 2005 (NSW) s 27(2)(b1)) and the Australian Capital Territory (Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(ba)). At the time of writing, a Bill to extend the defence is before the Victorian parliament (Justice Legislation Amendment (Integrity, Defamation and Other Matters) Bill 2024 (Vic)).

^[27] MDP Policy Options Paper (n 15).

^[28] Standing Council of Attorneys-General, Guiding Principles for Jurisdictions to Determine Whether to Extend Absolute Privilege to Matter Published to a Complaints-Handling Body (Guiding Principles, 22 September 2023).

^[29] MDP Policy Options Paper (n 15).

^[30] See, eg, Defamation Act 2005 (NSW) s 29A. Note that the public interest defence has not been legislated in Western Australia or the Northern Territory.

^[31] David Rolph, ‘Freedom of Speech and Defamation Law’ (2022) 96(10) Australian Law Journal 761, 770.

^[32] Hay v Cresswell [2023] EWHC 882 (KB) (‘Hay v Cresswell’).

^[33] Hay v Cresswell (n 32) [201].

^[34] Sarah Ailwood, ‘“Collateral Damage”: Consent, Subjectivity and Australia’s #MeToo Moment’ (2020) 46(2) Australian Feminist Law Journal 285.

^[35] Russell v Australian Broadcasting Corporation (No 3) (2023) 303 FCR 372.

^[36] Rush v Nationwide News (n 1).

^[37] Sarah Ailwood, ‘Performance, Credibility and #MeToo Testimony in Rush v Nationwide News Pty Ltd’ (2023) 49(2) Australian Feminist Law Journal 319.

^[38] Respect@Work Report (n 4) 573.

^[39] Meeting of Attorneys-General, Communique: Extraordinary Meeting of Attorneys-General (Public Communique, 9 June 2021); Meeting of Attorneys-General, Meeting of Attorneys-General Communique (Public Communique, 12 November 2021).

^[40] Standing Council of Attorneys-General, Executive Summary: Procedural Protections Available to Victims of Sexual Harassment as Witnesses in Civil Proceedings in Australia (Executive Summary, December 2022), 2.

^[41] Judicial Commission of New South Wales, ‘Defamation’, Civil Trials Bench Book 5-4000 (Web Page, June 2024) <https://www.judcom.nsw.gov.au/publications/benchbks/civil/defamation.html>.