Geoffrey Rush’s victory in his defamation case could have a chilling effect on the #MeToo movement
A side effect of Geoffrey Rush's defamation victory is the likely silencing of sexual harassment discussions and reporting, writes Karen O'Connell, an associate professor at the University of Technology Sydney's Faculty of Law, in this cross-posting from The Conversation.
The decision in Geoffrey Rush v Nationwide News, handed down in Australia’s federal court, is the first – and so far, only – legal determination of a case associated with the #MeToo movement in Australia.
The defamation case was decided in favour of the actor Geoffrey Rush, who had sued News Corp’s Nationwide News, the publisher of the Daily Telegraph, over allegations the newspaper published regarding Rush’s inappropriate behaviour with an unnamed fellow actor, later identified as Eryn Jean Norvill, who gave evidence in the case.
In finding for Rush, Justice Michael Wigney decided that the defence of truth argued by Nationwide News had not been proven. Because Wigney said Rush had suffered significant distress – and to vindicate his reputation – he set non-economic damages at A$850,000. This is more than double the cap in cases not involving aggravated damages, with further economic loss still to be determined.
The Rush decision comes as the Australian #MeToo Movement seems to have gone quiet. The high-profile cases that arose in the year following #MeToo, which included allegations against television presenter Don Burke, actor Craig McLachlan and politicians Barnaby Joyce, Luke Foley and Jeremy Buckingham, have mostly faded from public view.
Read more:
Craig McLachlan, defamation and getting the balance right when sexual harassment goes to court
None of these cases have been heard under sexual harassment laws, and none of the women has claimed or received any remedy. Rather, what most of these cases have in common is that the men involved have sued or threatened to sue for defamation.
While reckless and sensationalist media stories certainly cause harm, the Rush decision and other defamation cases may lead someone who has experienced sexual harassment to think that the reputational interests of the accused are better protected by law than those alleging harassment.
Australia has particularly strong defamation laws, which the Rush trial has brought into sharp relief. Actress Yael Stone, who publicly raised further concerns about Rush, said that Australia’s defamation laws made her “terrified” to speak up.
Will the decision in favour of Rush have a further chilling effect on future harassment claims, especially in the absence of any successful, high-profile sexual harassment cases?
Sexual harassment: layers of silence
We have, on paper, strong laws in Australia to respond to individual incidents of sexual harassment in the Sex Discrimination Act 1984 (Cth). But laws are useless if they are not enforced, and only a tiny proportion of sexual harassment incidents are ever reported (just 17%), let alone taken to court.
Of those few reports, most are kept quiet and out of the public view. If an incident is reported in a workplace, for instance, only a few insiders may ever know about it because of non-disclosure agreements.
Read more:
We need to do more about sexual harassment in the workplace
If a harassed person makes a complaint to the Australian Human Rights Commission, he or she must go through a compulsory, confidential conciliation stage. If this is unsuccessful and the complainant proceeds to court, there are very strong incentives to settle the case privately (namely the cost and difficulty of pursuing a case).
While these layers of confidentiality and privacy may suit the harassed as well as the alleged harasser, the flip side is that it makes sexual harassment, an enormous social problem, barely known to the public. Only the tiniest number of cases make it to court and into public scrutiny.
And if women speak up publicly through social or conventional media, defamation laws come into play.
What impact will the Rush decision have on sexual harassment reporting?
An unfortunate side effect of the decision is that it is likely to have an additional silencing effect on sexual harassment discussions and reporting. Such a widely reported defamation case can only further entrench public perceptions of the risks of speaking up.
There are further concerns. There is the potential for the public to mistakenly see this as a sexual harassment case between Rush and Norvill, rather than a defamation case between Rush and Nationwide News.
Read more:
#MeToo has changed the media landscape, but in Australia there is still much to be done
Since the court found that the defence of “truth” was not proven, this may lead to a misconception that Norvill’s statements about inappropriate behaviour were a lie. This will only be reinforced by Wigney’s statements questioning Norvill’s credibility, saying she was a witness “prone to exaggeration and embellishment”.
But having insufficient evidence to prove the truth of a statement in law is not the same thing as it being a lie. That misconception has the potential to exacerbate stereotypes about women making up claims of assault and harassment.
The Rush decision is a legal success for the actor, but it may have unintended side effects for the #MeToo movement and the effectiveness of sexual harassment laws.
People bringing sexual harassment cases to court generally receive very low damages payouts. Compared to the million-dollar awards for a celebrity defamation case, the median damages payment in a sexual harassment case is below A$30,000. The severe under-reporting and under-valuing of sexual harassment allegations, and the silencing of public discussion of the problem, may be further impacted by this decision, as well.
We need the #MeToo movement to continue if we are to tackle the continuing problem of sexual harassment and gendered abuse. In delivering his summary judgement, Wigney’s comment to the courtroom is surely the truest statement of all:
… it would have been better for all concerned if the issues that arose … were dealt with in a different place to the harsh, adversarial world of a defamation proceeding.
Karen O’Connell, Associate Professor, Faculty of Law, University of Technology Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.
While I am pleased to see the Telegraph punished for its flagrant attitude toward humans (We all know they don’t care about the alleged victim, only the story), I do worry that the evidence of the alleged victim hasn’t been given a proper hearing in the process.
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While I found the judge’s comments about the veracity of the alleged victim worrying, I wasn’t in the court to hear her testimony so am not really in a position to determine whether or not that was a fair call. But irrespective, the DT’s so-called journalism around this story was sloppy and reckless in the extreme — they did not even talk to the alleged victim — and in that respect, they got their just desserts.
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Why would anyone bother coming forward? The odds are stacked in the favour of the harasser. I feel so completely devastated for Erin (who, as pointed out, didn’t want her complaint made public to begin with). This outcome will leave her and any others who have been harassed or assaulted at work feeling more alone than ever before. I feel crushed. “I told the truth, I know what happened, I was there.”
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“This outcome will leave her and any others who have been harassed or assaulted at work feeling more alone than ever before. ”
Surely you mean “who have wrongly accused others of harassment..”?
Unless you are saying you don’t accept the court’s decision?
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Our media made such a ham-fisted job of reporting the claims, they single-handedly killed the #metoo movement here. It was all just sensational grist to the mill. Congratulations.
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I feel sorry for the witness and anyone else that wanted to come forward. This judgment will make it less likely other people will come forward in similar circumstances.
Seems like Rush got News on a technicality. Not getting the witness/es to go on record before publishing the article may have been their mistake. And possibly some other things going against them in this trial.
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An excellent piece Karen, thanks for writing with such clarity and with statistics. Too many of my female friends have shared with me mild to serious sexual harassment they have experienced from a higher authority at work, and not at Christmas parties. I hope your column is read by many.
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Its not a bad thing that journalists have been reminded to do basic verification of the facts *before* reporting
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Of course we would all feel that way when disbelieved. Its important not to conflate one case with another. The verdict on this one seems to indicate that there were four people (two of whom were female) who contradicted Ms Norvill’s evidence. They too were “there”.
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The alleged victim had probably the fairest process possible.
– She had her day in court,
– got to make her allegations in open court thus rendering her exempt from defamation charges herself for that testimony,
– had a colleague back her up
– and was supported for free by very expensive News Ltd lawyers who wanted to paint her as lilly white for their own purposes
Unfortunately as is a risk for anyone who goes to court, the judge found against her saying: ” the actress was not “an entirely credible witness” and suggested she was “prone to exaggeration and embellishment”.
In other words he didn’t believe her based on the evidence, and she left court having had her credibility torn to shreds by the court.
You can’t ask for the evidence of the alleged victim to be given a more fair hearing.
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or worse, are repeating the libel against Rush
Norvil was unlucky. She got in the way of the Tele and what they thought was a juicy story.
Mind you, she probably got a better hearing than she would if she had made a formal complaint of harassment against him.
At least in the court case, she had free lawyers boosting her and trying to prove her right, admittedly for their own purposes.
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It would have made no difference if she was on record.
Her allegations were put to the court and found not to be true by the court.
Given that result, being on record would not have made any difference
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It would be better for everyone if harassment claims could be settled informally with mild punishments and apologies in most cases.
If someone faces career ruin, they are going to fight tooth and nail to defend themselves as Rush did, within the bounds of the law
Often a formal legal process is the worst outcome for everyone. It certainly was for Rush and for the actress.
Rush made $38 million i read between 2003 and 2017 i think.
He’ll get a couple of million compo covering a year or 2, which is what he would have earned anyway if this never happened but mud sticks and there will be a lot of roles now he will never be considered for so his career and income will suffer despite being vindicated.
And Norvill is unlikely to have helped her career, especially given the scathing comments from the judge about her.
I think as Rush said if i recall correctly, there are no winners here.
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True, although they did have the basic facts correct, in that there had been a complaint made but that was not a defence as the truth defence covers the truth of the allegation of harassment, not the truth about whether a report was made or not.
But unfairly for Norvill, she got ground up and spat out as a result of being used for a couple of juicy headlines by a disreputable rag who cared nothing about her.
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Really? I fee sorry for the accused – who it is worth pointing out was found not guilty.
And, a technicality? Insufficient evidence is a technicality in your eyes? I thought it was the basis on which justice is served.
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Just to be clear, EJ Norvill did not choose to take this matter to court or have the details of her complaints published by News Corp. Those decisions were taken out of her hands by other parties with other agendas. There’s nothing fair about that.
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I get your point Alice but don’t let a bunch of sub par recruiters get to you. I’m sure the recruitment world/process would be a much simpler and more efficient place without many of them. Good luck in your job search.
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She probably didn’t want the matter going to court or being published because her allegations were untrue, as the court has now found. She’s fortunate not to get sued for slander…
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Thanks Karen. What a great article. It seems like this decision has also had a chilling effect on the media talking about this case – yours is the first article I’ve read commenting on its wider and worrying impact.
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By ‘worrying’ I’m guessing you don’t mean stopping people from jumping on board the #metoo movement to make unfounded claims designed to ruin a person’s career, family, reputation and life? No?
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