Why is #MeToo playing out so differently in Australia?

In the U.S., the wave of women speaking out about sexual harassment and assault in the workplace has led so far to the downfall of more than 200 public figures including entertainment moguls, politicians, journalists and actors. Here, it’s descended into a morass of lawsuits.

One-time “Neighbours” actor Craig McLachlan is seeking $6.5 million in damages from Fairfax Media Ltd. and the Australian Broadcasting Corp. after they published allegations he’d bullied and sexually harassed women working on a 2014 production of “The Rocky Horror Show.” Luke Foley, leader of the opposition in the parliament of New South Wales state, resigned last month after an ABC reporter said he’d groped her during a 2016 event. At the same time, he announced he was taking advice on defamation proceedings, though he subsequently decided not to move forward.

Meanwhile, Oscar-winner Geoffrey Rush is bringing a libel suit against the publisher of Sydney’s Daily Telegraph after it printed allegations that he had engaged in “inappropriate behavior” while playing the title role in King Lear. Eryn Jean Norvill, who had played Lear’s daughter Cordelia in the production, told the court that Rush had stroked and sexually harassed her both onstage, backstage and in rehearsals. 

In interviews with the New York Times and ABC television this week, “Orange Is the New Black” actor Yael Stone also alleged instances of inappropriate behavior by Rush. He’s denied both sets of claims.

One reason for the difference is that the burden of proof in U.S. libel cases typically weighs much more heavily on the claimants than the defense. Public figures bringing lawsuits in the U.S. must prove the publishers were motivated by “actual malice,” a tough hurdle to jump. By contrast, in most other English-speaking countries the main burden is on the publishers to satisfy the courts that what they printed was true. That’s an equally challenging bar in sexual-harassment cases, which often come down to he-said she-said disputes.

This difference isn’t primarily a result of Australia lacking a bill of rights, let alone the sort of wide-ranging free speech protections embodied by the U.S. First Amendment. Indeed, the U.S. allowed defamation claimants similar latitude until New York Times v. Sullivan, the 1964 Supreme Court decision that started shifting the burden of proof in libel suits.

That was ultimately a civil rights case: It started off when the commissioner of Montgomery, Alabama, sued the Times over an inaccurate advertisement it had carried from supporters of Martin Luther King attacking “Southern violators of the Constitution.” A segregated court presided over by a judge who’d proclaimed his support for “white man’s justice” awarded Sullivan $500,000, sparking copycat suits in other Southern courts that eventually sought more than $300 million in damages and prompted CBS Corp. to consider suspending coverage of the civil rights struggle. 

Though no churches are being bombed, teenagers lynched, or voters beaten by police, it’s worth considering the parallels with that era. Sexual harassment is ultimately an issue of civil rights, violating the core principle of the Universal Declaration of Human Rights that “all humans are born free and equal in dignity.” As in the run-up to Sullivan, the chilling power of court action is suppressing public discussion – in this instance, of the way that the workplace sexual harassment experienced by a fifth of Australian women hurts their rights and opportunities.

The difficult line that all defamation law treads is that too much freedom of speech risks violating people’s rights to their reputation, another article of the Universal Declaration. Still, it’s hard to argue that shifting the balance of proceedings a little closer to the defendants would cause more harm than Australia’s status quo already entrenches. Despite the reservations of scholars (ranging from Bloomberg Opinion contributor Cass Sunstein to Supreme Court Justice Elena Kagan) there’s been no serious suggestion that the actual malice standard in the U.S. should be thrown out, despite nearly five decades passing since that decision.

Fortunately, Australian courts already have at their disposal the tools to prevent reckless slander without choking off necessary discussion of matters of public interest.

The defense of qualified privilege allows some communication of defamatory material even if truth hasn’t been established, so long as the defendants can show they’ve done sufficient due diligence in investigating the claims. Despite some attempts to turn that standard into a broader protection of speech, to date it’s languished – used mainly to protect people in giving employment references, statements to the police, and the like. 

That’s a missed opportunity. Regardless of the merits of recent cases, the current setup carries intolerably high risks for victims of harassment who would seek to speak out about their experiences. Change is more than five decades overdue. Justice is blind, but she should not be silent.

To contact the author of this story: David Fickling at dfickling@bloomberg.net

To contact the editor responsible for this story: Rachel Rosenthal at rrosenthal21@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

David Fickling is a Bloomberg Opinion columnist covering commodities, as well as industrial and consumer companies. He has been a reporter for Bloomberg News, Dow Jones, the Wall Street Journal, the Financial Times and the Guardian.

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