When #metoo meets defamation law, and a brutal political culture
It is no coincidence that as the #metoo movement ricochets around the world, in Australia we find ourselves at the centre of a four-way collision between a cultural change on respect for women, a global surge of female anger, our stringent defamation laws, and a brutal political culture.
The Joyce, Rush and Foley cases all involve allegations of inappropriate sexual conduct against powerful men, made by women who did not want those allegations made public.
In the Joyce case the complainant wanted her report to be dealt with in-house by the National Party.
In the Foley case, the alleged victim of his sexual harassment did not even make a complaint.
Such was her fear and/or her discretion, she even urged a male witness to the alleged incident to stay silent, too.
The institution to which Foley belongs – the NSW Labor party – knew of the allegations, at least in general terms, but felt no need to proactively investigate them, relying on the assurances of the man at the centre of them.
The result is that alleged victims have been thrust reluctantly into defending the truth of the claims they never wanted made public.
The toll on all three women has been serious, and many believe, unjust.
What happens when the free-speech values of the #metoo movement meet the straitjacket of our defamation laws?
“Our defamation laws favour the plaintiff,” says Barbara McDonald, a professor of law at the University of Sydney.
“It is very easy to defame someone. It is very easy to say something that makes other people think less of someone.
“The onus is then shifted to the defendant to defend that claim. Not only do you have to defend literally what you said, you also have to defend the imputation that the ordinary reader would draw from what you said.”
It is very different to the American situation, where there is a First Amendment guarantee of freedom of speech.