Politicians know defamation laws can silence women, but they won’t do anything about it

This piece is the second in a series on Australia’s defamation laws. You can read the first article here.

Over recent years, forces like the #MeToo movement have shone a light on how Australia’s defamation laws play out for women. These laws influence whether and how women speak about their experiences of violence and harassment.

Multiple high-profile cases have highlighted the gender dynamics at play. Both Geoffrey Rush’s successful defamation claim against the Daily Telegraph in 2018 and Bruce Lehrmann’s ongoing litigation against Network Ten and Lisa Wilkinson attracted much media attention. This included commentary about how defamation can silence women.

But these laws don’t only affect women speaking out publicly and through the media. They also affect women seeking to report sexual violence to the police and sexual harassment in the workplace.

Defamation law is weaponised against women in a variety of settings across the country. Our politicians have acknowledged this, but there’s been little appetite for fixing it.

The difficulty of truth

To bring a defamation claim under Australian law, a plaintiff must prove a number of things. But one thing the plaintiff does not have to prove is that the publication is false.

Many defendants rely on the “truth defence”, which requires them to prove the substantial truth of the publication. If it’s successful, that wins them the case.

But with allegations of sexual violence, establishing the truth is notoriously difficult. That’s even with a lower standard of proof (the balance of probabilities) than in criminal courts (beyond reasonable doubt).

Look no further than in Lehrmann’s case against Ten. The quality and quantity of the evidence brought by the defence, including extensive audio-visual recordings and the testimony of multiple third parties, shows what’s needed to meet this very high standard.

This means it is relatively easy for an alleged perpetrator to bring a defamation claim against a person who reports sexual violence or harassment, and relatively difficult for a victim-survivor to defend the claim.

Discouraging coming forward

The weaponisation of defamation law by perpetrators against women reporting sexual violence and harassment is well documented.

In the Respect@Work Report, the Australian Human Rights Commission heard evidence that women reporting workplace sexual harassment were being threatened with and sued for defamation. The report found Australia’s defamation laws “discourage sexual harassment victims from making a complaint”.

Recent research has revealed that threatening or commencing defamation proceedings is a widely used tactic by alleged perpetrators to silence victim-survivors and pressure them to withdraw complaints.

Read more:
Non-disclosure agreements are commonplace in sexual harassment cases, but they’re being misused to silence people

The destructive effects 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 was then successfully sued for defamation by the perpetrator at trial.

The judge also found the victim-survivor’s report was malicious. He found “police have no interest in or a duty to receive gossip or adverse commentary”.

Both of these findings were overturned on appeal, but by then, the costs of the defamation litigation had forced the victim-survivor to declare bankruptcy.

Reluctance to change

The impact of perpetrators weaponising defamation law is both individual and structural.

On an individual level, it targets victim-survivors reporting and complaining of sexual harassment and violence.

Structurally, it contributes to a culture of fear of speaking out, contributing to the ongoing silencing of violence against women.

Yet the Standing Council of Attorneys-General (the federal attorney-general and those from every state and territory) has chosen not to act to protect women reporting sexual violence and harassment from defamation claims in the workplace.

The council did agree that absolute privilege should be extended to reporting to police. Absolute privilege means a person can’t be help liable for defamation, like in parliament.

So far, attorneys-general in Victoria, New South Wales and the ACT have brought in legal protections for women reporting violence to police. That’s a good thing, though other state and territories are yet to follow.

But it obscures the group’s refusal to extend those protections to the workplace, where much of this abuse occurs.

In its review of defamation laws, the council considered how these laws affect workplace sexual harassment. In particular, it considered whether absolute privilege should apply to sexual harassment and violence in particular contexts, like work.

The council found victim-survivors and witnesses of sexual violence, sexual harassment and other forms of unlawful personal conduct 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 in the first place.

A key advantage of extending absolute privilege is that many defamation claim would likely be summarily dismissed without the need for a costly and lengthy trial, which is usually required. This would likely reduce the weaponisation of defamation law by perpetrators.

The council decided not to do this in workplaces. It blamed a division of stakeholder opinion within the consultation process. It also said there weren’t enough protections for alleged perpetrators, like penalties for false reporting.

Reinforcing myths

The rationale appears to be that employers implementing Respect@Work and eliminating sexual harassment from their workplaces will also eliminate the need to report it, in turn removing the threat presented by defamation law.

But the council’s decision also reinforces how important the idea of reputation is within Australian defamation law.

Protecting the reputation of alleged perpetrators of violence is of greater value to Australia’s attorneys-general than protecting the speech of victim-survivors of sexual violence and harassment.

It also reinforces myths about workplace sexual harassment: that men are at significant risk from women making false reports, and that sexual harassment is an individual, interpersonal problem rather than a structural issue that should be addressed by law reform.

Australian women remain at risk of being threatened with or sued for defamation for reporting sexual harassment and violence in the workplace.

This is yet another instance of a law reform process failing to listen and act in response to violence against women. Our chief legal officers have acknowledged the weaponisation of defamation law to silence women in the workplace and refused to do anything to prevent it.