Australia's defamation laws are failing women who want to say #MeToo

The #MeToo Movement is an act of public resistance. But it’s also a defamatory minefield, particularly when it comes to allegations about powerful men.

Following recent sexual misconduct allegations, Geoffrey Rush is suing The Daily Telegraph, Craig McLachlan is suing Fairfax and the ABC, and journalist Tracey Spicer has commented that Australia has some of the "toughest defamation laws in the world".

Australia’s defamation laws are failing women who want to say #MeToo.

So, what are the implications of Australia’s defamation laws on women demanding equal treatment in unequal spaces?

When bordered laws govern borderless spaces

Introduced in 2005, Australia’s defamation laws pre-date social media, and are poorly equipped to handle a digital landscape.

For instance, you cannot sue an anonymous person for defamation, which means men who hide behind fake accounts escape punishment, while the (named) women who call them out face account suspensions and legal action.

Unlike in the US, where public figures who say they’ve been defamed must prove that the statement is false and published with malice, in Australia, the reverse is true: a woman is presumed to have defamed through her accusation unless she can prove her statement is true on the balance of probabilities.

This is the burden of proof in civil matters, requiring parties to show that it is more likely than not that their account is factual. This is a big ask in cases of sexual harassment or assault, where there’s often no other witness and the case hinges on a woman’s perceived credibility. Accordingly, many women would undoubtedly fall short of this test when defending a defamation claim.

There’s good reason for strict evidentiary burdens: they are the law’s way of trying to ensure fairness. But in a legal system where women are worried they will not be heard, it is oppressive. The available defences to defamation and application of the burden of proof set women up for failure. An evidentiary onus that prioritises men’s reputations above women’s safety encourages and facilitates silence.

Defending a defamation case is even more difficult for women who face other barriers to accessing justice.

Women with a disability or from culturally and linguistically diverse backgrounds are twice as likely to be sexually harassed at work. Some women lack the resources to engage a lawyer. For those from a rural background, they could be calling out a perpetrator who is well known by the community, police or magistrates. These women shouldn’t have to choose between silence or a lawsuit.

Reputation versus revolution

Defamation laws are designed to protect a person’s reputation. But they can function to protect the reputations of men who have gotten away with too much for too long.

If our legal system encourages women to stay silent, or remain anonymous, or cross their fingers and hope their perpetrator isn’t a man with the resources or vengeance to start a defamation claim, they lose their agency, and the momentum of a movement like #MeToo is automatically capped. But what’s the solution?

We must also reform local laws still stuck in the era of print media. Perhaps we should take guidance from the US system by placing the onus on a public figure alleging defamation. While this would make it harder to bring about a successful defamation action, it’s a worthwhile trade-off if it allows women to call out their perpetrators without fear of reprisal.

We must keep pushing our legislators to ensure every woman, in every corner of the world, has the chance to say, “me too”.

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