Defamation Laws Restrict Public Accusations of Sexual Misconduct

A recent report by the Australian Human Rights Commission (AHRC) suggested that workplace sexual harassment is on the rise across the nation.

But while the global #metoo movement has encouraged complainants to come forward and report sexual misconduct, journalist Ronan Farrow has criticised Australian defamation laws for discouraging reporting by exposing complainants to civil or even criminal liability for public accusations against alleged perpetrators.

Sexual harassment rife in workplaces

The AHRC found that one-in-three people have been sexually harassed at work over the past five years, and one-in-five have reported the conduct to their superiors.

The Commission further found that, although harassment was increasing, the percentage of reports was falling, from 32% in 2003 to just 17% at present

Many of those who neglected to report to conduct said they felt it was not significant enough to warrant a formal complaint, or that nothing would be done, or that a report could damage their career.

Those who reported the conduct often felt they were labelled as troublemakers and ostracised by colleagues, and their complaints were ultimately ignored. Close to half said little or no organisational change took place as a result of their reports.

What is sexual discrimination?

Section 28A of the Sex Discrimination Act 1984 (Cth) defines sexual harassment as any unwelcome:

• sexual advance, or
• request for sexual favours, or
• conduct of a sexual nature,

which is such that a reasonable person would anticipate the possibility that the subject would feel offended, humiliated or intimidated.

The circumstances to be taken into account when deciding whether conduct amounts to sexual harassment include:

• the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the subject;
• the relationship between the subject and the person who made the advance or request or who engaged in the conduct;
• any disability of the subject; and
• any other relevant circumstance.

“Conduct of a sexual nature” explicitly includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Making sexually suggestive or offensive comments towards a work colleague was found to be the most prevalent form of sexual harassment, with 25% of women and 13% of men reporting having been subject to such conduct within the past five years.

Which acts of sexual discrimination amount to offences?

While civil complaints can be made regarding unlawful sexual harassment to the Sex Discrimination Commissioner and Australian Human Rights Commission, and their decisions appealed to the Administrative Appeals Tribunal, section 85 of the Act makes clear that such conduct does not amount to an offence unless it contravenes the ensuing sections.

Section 86 makes it an offence punishable by a fine of $1,100 to ‘publish or display an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of Part II’ (which defines sexual harassment).

Section 87 prescribes the same penalty where a person who engaged in unlawful sexual harassment fails to provide the AHRC within 28 days of its written request, any actuarial or statistical data on which the act of discrimination was based.

Section 92 sets the same penalty for anyone who makes a record of, divulges or communicates to any other person, any particulars of a sexual harassment complaint lodged with the AHRC until:

• the President has started an inquiry; or
• the complaint is withdrawn,
• the President terminates the complaint.

Particulars can, however, be divulged to:

• the complainant or a person on whose behalf the complaint was made; or
• the person alleged perpetrator; or
• the lawyers for the complainant or alleged perpetrator, or
• the employer or principal of the complainant or alleged perpetrator, or

The complainant is permitted to divulge particulars to

• a person or body that deals with complaints; or
• an officer of a tribunal which is dealing with a complaint, or
• a near relative of the complainant, being a parent, child, grandparent, grandchild, brother, sister, spouse or de facto partner,
• a counsellor or advisor.

Section 94 prohibits a person from committing an act of victimisation against another.

The maximum penalty is 3 months’ imprisonment and/or $2,750 fine for individuals, or a fine of $11,000 for corporations.

A person commits an act of victimisation against another if he or she subjects, or threatens to subject, the other person to any detriment because he or she:

• has made, or proposes to make, a formal complaint of sexual harassment; or
• has brought, or proposes to bring, proceedings for sexual harassment; or
• has or proposes to furnish information, or has or proposes to produce, any document to a person exercising or performing a power under sexual harassment provisions, or
• has or proposes to attend a conference held in relation to a sexual harassment complaint; or
• has or proposes to appear as a witness in sexual harassment proceedings; or
• has or proposes to reasonably assert any rights relating to being subjected to sexual harassment; or
• has made an allegation that a person has done an act that is unlawful by reason of sexual harassment provisions.

And section 95 prescribes a maximum fine of $1,100 for anyone who insults, hinders, obstructs, molests or interferes with a person exercising a power or performing a function under the Act.

The general criminal law also makes it an offence to engage in acts of sexual discrimination which amount to assaults, indecent assault, indecent exposure, stalking or intimidating, or sexual assault.

#Metoo and free speech

Journalist Ronan Farrow’s investigations last year exposed allegations of sexual harassment and sexual assault against Hollywood film producer Harvey Weinstein, which proved to be the catalyst for the global #metoo movement.

Mr Farrow believes the movement in Australia has been hindered by the fact we have no constitutional protection for free speech, save for a limited freedom of political expression.

He says there are “stark differences” in what can be legally published in the US, compared with countries such as England and Australia, and that victims are too scared to air their accusations for fear of being subjected to defamation proceedings.

The view is shared by veteran Australian television journalist Tracey Spicer, who says she has found it difficult to report on sexual harassment allegations for fear of being sued for defamation.

Spicer is the founder of NOW Australia, an organisation that seeks to collect complaints against perpetrators of sexual harassment. She recalls wanting to publish the name of her alleged abuser in her book, but being warned against that course of action. “I couldn’t name him in my book,” she remarked. “I actually had plenty of witnesses when it happened but [my lawyers] said ‘yes but he’s rich and he has deep pockets and he’s litigious’.”

Media lawyer Peter Bartlett says the same concerns prevented accusations being fully aired about television personality Don Burke.

“Don Burke is a resident in New South Wales. Sydney is regarded as a defamation capital of the world, so there is a greater risk that he would sue,” the lawyer stated.

Defamation laws

Defamation laws in the United States require public figures to prove not only that a defamatory imputation is false, but that it was published maliciously.

There is no such requirement of malice in Australian defamation laws. Here, a defendant must prove that their defamatory publication attracts a defence in order to defeat a claim.

The statutory defences in New South Wales include justification, contextual truth, privileged material, public documents, fair reporting of a matter of public concern, honest opinion (based on proper material) and innocent dissemination.

According to a report by the University of Sydney, women with disabilities or from culturally and linguistically diverse backgrounds are twice as likely to be sexually harassed at work, and also less likely to report such conduct. Vulnerable people are also less likely to be able to bear the costs of a defence to defamation proceedings.

Power and free speech

Professor Barbara McDonald, a defamation law expert at the University of Sydney, believes the balance between promoting free speech on the one hand, and protecting against unfair reputational damage on the other, is tipped in favour of the latter.

“I think our defamation law is far too onerous and far too chilling,” she remarked. “The media should have much more scope for reporting on matters of public interest.”