‘Defamation is back big time’, says senior judge, but warns victories may be Pyrrhic
Australia is seeing a rise in #MeToo defamation cases coming to court, but our legal system is not equipped to handle them, according to a senior judge.
Actor Geoffrey Rush, Labor politician Luke Foley and Greens MP Jeremy Buckingham have all had allegations of sexual misconduct levelled against them, and all have strenuously denied it.
An increasingly popular way of getting to the bottom of the allegations is by going to court, as Rush has.
“It’s an awful lot of cases,” Judge Judith Gibson told AM.
Judge Gibson has presided over defamation cases in the NSW District Court for nearly two decades.
She said she was concerned that Australia’s court system could not cope with the rising number, particularly with the more challenging #Metoo cases.
“The whole concept of #MeToo is so unexpected and so out of sync with existing legislation, this is one of many areas of the law that really needs consideration,” she told The World Today.
“The problem is that changes to society and changes in technology are simply moving too fast for the law to keep up.”
Judge Gibson cautioned that the nature of evidence submitted in defamation proceedings meant the truth was often missed.
“When you have allegations of a #MeToo nature explored in the criminal context, there are a number of safeguards that are put in place,” she explained.
“The whole criminal procedure is aimed at ensuring that the truth of the allegation is explored in the framework of those safeguards.”
But with defamation, those safeguards are not there.
“There’s nothing to stop counsel for the plaintiff asking the alleged victim a lot of questions that would never be permitted in criminal proceedings,” she said.
As a result, taking matters to court can become counterproductive.
“Solving these matters in a defamation framework is not going to achieve much,” she said.
“The effect of the publicity in cases of this nature can itself be counterproductive.