SYDNEY ― Strict anti-defamation laws that have a “chilling effect” on journalism may prevent Australia from experiencing its own “Weinstein moment” exposing a multitude of high-profile sex offenders, Australian legal experts say.
From Harvey Weinstein to Kevin Spacey, Mario Batali to Louis C.K. to Al Franken, a string of American celebrities and politicians have faced public allegations of sexual violence, harassment and misconduct in recent months. But in Australia, far fewer high-profile figures have been caught in a similar maelstrom. So far, celebrity TV gardener Don Burke has been the only famous personality to be targeted, with a long list of women, including former employees of his high-rated primetime program, accusing him of lewd comments and inappropriate behavior.
Legal experts say that Australia’s defamation laws, which are far stricter than those in the United States, and Australia’s lack of a constitutionally guaranteed right to free speech mean that a Weinstein-level moment of reckoning is less likely to occur.
Journalists in Australia are forced to be far more cautious to avoid being sued and may be reluctant to report similar stories in their own backyard, said professor David Rolph of the University of Sydney Law School.
“It is fairly notorious that defamation law in Australia has a chilling effect on investigative journalism and reporting more generally. It’s something that inhibits reporting,” he told HuffPost, adding, “The risks of defaming someone are higher.”
The U.S. Constitution’s First Amendment provides a level of protection for the media that Australians don’t have, Rolph said. In particular, he pointed to the “public figure” doctrine in the U.S., which requires plaintiffs who are prominent individuals to prove that a report was both false and published with “actual malice.” By contrast, he said, Australia’s system is “pro-plaintiff.”
“The U.S. has the defamation laws most protective of free speech in the common law world, which opens up the scope of reporting and journalism,” Rolph explained. “In Australia, the plaintiff doesn’t have to prove [the allegation] is false; the defendant has to prove it is true.”
Media reports said that Burke, the celebrity TV gardener, retained a high-profile defamation lawyer before the first press stories on his alleged behavior even surfaced in November.
Actor Geoffrey Rush began legal proceedings against Sydney’s Daily Telegraph newspaper after recent stories alleged that he had engaged in inappropriate behavior during a recent theater production. The legal claim filed by Rush’s lawyers not only objects to the reporting of the allegations, which the “Pirates of the Caribbean” actor denied, but also the fact that the articles linked Rush to the likes of Weinstein.
Australia’s defamation law applies not only to the claims directly outlined in media reports, but also to inferences that a reasonable person could draw from that reporting, explained professor Barbara McDonald, who also works at the University of Sydney Law School.
“It’s one thing to say someone sexually assaulted someone else, another to imply they are a serial assaulter,” she said. “It’s a matter of what implication the reasonable person would draw, so you have to defend that as well as the literal one.”
The Australian legal system also lacks a “broad public interest defense,” McDonald said, and it’s overall “very easy” for defamation to be claimed in court.
“The burden is on the defendant to prove the truth. It’s almost a presumption that a defamatory allegation is false and goes to the defendant to prove it is true,” she said.
Phil Johnston, a defamation lawyer with leading firm Slater and Gordon, called this focus on not only the contents of any reporting but the implications that could be drawn a “quirk” of Australia’s legal system.
He cited the case of actress Rebel Wilson, who successfully sued an Australian magazine publisher for running a series of articles that claimed she was a serial liar. In September she was awarded AU$4.56 million (about US$3.5 million), the highest defamation payout in Australian history. This award included AU$3.91 million (about US$3 million) in special damages for “financial loss,” after her lawyers argued that her career had suffered and she had missed out on film roles due to the articles.
“Newspapers and media in general are very switched on to this,” Johnston said. “The Rebel Wilson case is a good example of the judiciary coming down hard on them, and that has set the tone for the next few years in this sphere.”