Poltics
Over latest years, forces adore the #MeToo movement gain shone a light-weight on how Australia’s defamation laws play out for females. These laws have an effect on whether or now not and how females be in contact about their experiences of violence and harassment.
A pair of high-profile cases gain highlighted the gender dynamics at play. Each and every Geoffrey Lag’s successful defamation claim in opposition to The Day-to-day Telegraph in 2018 and Bruce Lehrmann’s ongoing litigation in opposition to Network Ten and Lisa Wilkinson attracted powerful media consideration. This integrated commentary about how defamation can silence females.
But these laws don’t handiest gain an price on females talking out publicly and thru the media. They even gain an price on females attempting to compile to document sexual violence to the police and sexual harassment within the spot of work.
Defamation law is weaponised in opposition to females in a differ of settings within the course of the nation. Our politicians gain acknowledged this, but there’s been exiguous speed for food for fixing it.
The scenario of truth
To announce a defamation claim below Australian law, a plaintiff must show a series of issues. But one thing the plaintiff does now not want to expose is that the publication is flawed.
Many defendants depend on the “truth defence”, which requires them to expose the tall truth of the publication. If it’s successful, that wins them the case. But with allegations of sexual violence, organising actually notoriously complicated. That’s even with a lower favorite of proof (the steadiness of probabilities) than in felony courts (past realistic doubt).
Seek no additional than in Lehrmann’s case in opposition to Ten. The everyday and quantity of the evidence brought by the defence, including broad audio-visual recordings and the testimony of multiple third parties, exhibits what’s wished to meet this very high favorite.
This means it’s a long way slightly easy for an alleged perpetrator to announce a defamation claim in opposition to a one who reports sexual violence or harassment, and comparatively complicated for a victim-survivor to protect the claim.
Poltics Discouraging coming forward
The weaponisation of defamation law by perpetrators in opposition to females reporting sexual violence and harassment is wisely documented.
Within the Admire@Work Document, the Australian Human Rights Fee heard evidence that females reporting spot of work sexual harassment had been being threatened with and sued for defamation. The document found Australia’s defamation laws “discourage sexual harassment victims from making a complaint”.
Contemporary be taught has published that threatening or beginning off defamation court docket cases is a widely susceptible tactic by alleged perpetrators to silence victim-survivors and stress them to withdraw complaints.
The adverse results of defamation litigation for victim-survivors are evident in a 2022 Queensland case called Sherman vs Lamb. A victim-survivor of coercive control in a relationship that had recently ended reported the violence to a police officer. She used to be then successfully sued for defamation by the perpetrator at trial.
The opt also found the victim-survivor’s document used to be malicious. He found “police don’t gain any hobby in or an obligation to receive gossip or detrimental commentary”.
Each and every of these findings had been overturned on attraction, but by then, the costs of the defamation litigation had forced the victim-survivor to enlighten financial raze.
Poltics Reluctance to alternate
The impact of perpetrators weaponising defamation law is both particular particular person and structural. On a particular person level, it targets victim-survivors reporting and complaining of sexual harassment and violence. Structurally, it contributes to a convention of fright of talking out, contributing to the continuing silencing of violence in opposition to females.
But the Standing Council of Attorneys-Bizarre (the federal felony legit-overall and these from every utter and territory) has chosen now not to behave to protect females reporting sexual violence and harassment from defamation claims within the spot of work. The council did agree that absolute privilege must be extended to reporting to police. Absolute privilege potential a particular person can’t be held liable for defamation, adore in Parliament.
To this point, attorneys-overall in Victoria, Contemporary South Wales and the ACT gain brought in lawful protections for females reporting violence to police. That’s an correct thing, even supposing other utter and territories are yet to issue. But it obscures the crew’s refusal to prolong these protections to the spot of work, where powerful of this abuse occurs.
In its evaluation of defamation laws, the council regarded as how these laws gain an price on spot of work sexual harassment. In explicit, it regarded as whether or now not absolute privilege ought to issue to sexual harassment and violence in explicit contexts, adore work.
The council found victim-survivors and witnesses of sexual violence, sexual harassment and different forms of illegal personal behavior are being threatened with and sued for defamation. It found this causes victim-survivors to withdraw reports and complaints, and that it deters them from making reports and complaints within the significant spot.
A key profit of extending absolute privilege is that many defamation claims would seemingly be summarily brushed apart with out the want for a costly and lengthy trial, which is on the overall required. This could seemingly prick the weaponisation of defamation law by perpetrators.
The council determined now not to do this in locations of work. It blamed a division of stakeholder thought within the session route of. It also acknowledged there weren’t adequate protections for alleged perpetrators, adore penalties for flawed reporting.
Poltics Reinforcing myths
The rationale seems to be to be that employers enforcing Admire@Work and pushing aside sexual harassment from their locations of work can even do away with the must document it, in turn doing away with the probability presented by defamation law.
But the council’s possibility also reinforces how crucial the premise of recognition is within Australian defamation law. Protecting the recognition of alleged perpetrators of violence is of upper trace to Australia’s attorneys-overall than keeping the speech of victim-survivors of sexual violence and harassment.
It also reinforces myths about spot of work sexual harassment: that men are at significant probability from females making flawed reports, and that sexual harassment is a particular person, interpersonal self-discipline slightly than a structural scenario that must be addressed by law reform.
Australian females stay at probability of being threatened with or sued for defamation for reporting sexual harassment and violence within the spot of work.
This is one more occasion of a law reform route of failing to pay consideration and act consistent with violence in opposition to females. Our chief lawful officers gain acknowledged the weaponisation of defamation law to silence females within the spot of work and refused to do anything to forestall it.
This part used to be first published in The Dialog.
