Introduction
In defamation matters, imputations tend to refer to defamatory statements which are considered a mediocre degree of seriousness that, nonetheless affects a person’s reputation. More serious matters would contain imputations claiming that someone has engaged in crimes, specifically those such as murder or crimes of a sexual nature.
With the prevalence of the MeToo Movement, and more people talking about their experiences with sexual crimes, some may be defaming if they cannot prove that a sexual crime is substantially true. With these types of allegations, proving that this has occurred would require substantial proof such as, a judgment as a result of court proceedings or some form of evidence ensuring without question that the allegations are true.
For example, paedophilia is considered the most serious of those allegations against a person[1] as it refers to sexual misconduct towards a minor.
#MeToo Movement and Defamation
While the MeToo Movement was a moment in history for people to be empowered to speak about their unfortunate experiences, it raised concerns as to whether some people were being defamed as a result. There is no question that some people accuse others of such heinous crimes for the sake of receiving attention or out of malice.
A serious issue arises where positive, forward movements, such as MeToo, are used as a platform on social media for false accusations. Many of these posts on social media have far reach, so an abundance of viewers are exposed to defamatory material. Take Facebook for instance, the fact that a post can be viewed, liked, commented on, and shared enables a wider audience and further defames the Plaintiff. These instances are where defamation claims have made headlines in the media. Despite successful claims and apologies, the reputation of someone can be so deeply damaged that it can never be completely repaired to what it was before the allegations were made.
In the case of Ley v Hamilton[2]Lord Atkin described the wide reach of social media as follows:
“It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation”.
Imputations of Homosexuality
With the recent development in the Australian legislation of same-sex marriages, homosexual imputations are effective in being defamatory. There are several cases illustrating the circumstances where such a situation would arise.
In the case of Gluyas v Canby[3], several publications were made by the Defendant about the Plaintiff claiming that he was a paedophile, a homosexual, a liar, and that he had assaulted another person. Justice Forrest found the statements to be defamatory, particularly that of which referred to homosexuality on the basis that the Plaintiff was married and any ordinary, reasonable reader who was aware of this would regard the statements as defamatory.
Likewise, in the case of Rivkin v Amalgamated Television Services[4], the Defendant imputed that the Plaintiff “…engaged in homosexual intercourse with Gordon Wood” the court held that imputations of homosexuality could not be held defamatory on its own.
Analogously, in the case of Tassone v Kirkham[5], the parties were both correctional officers at the Adelaide Remand Centre. The Defendant sent an email out to over 2,000 colleagues from the Plaintiff’s work email stating as follows: “hello people, just a note to say that i am homosexual and i am looking for like minded people to share time with”. The Court held that the imputations of homosexuality were not defamatory in itself and that in the context of the whole email, the publication was defamatory. The Court awarded damages to the Plaintiff.
Injunctions and Imputations of a Sexual Nature
In defamation claims, injunctions are orders imposed by the court to prevent further defaming someone. Often, we find that injunctions are imposed in defamation cases, where defamatory statements contain sexual material. For example, with publications accusing someone of rape, sexual assault or harassment, and paedophilia.
For instance, in Doe v Dowling[6], the Defendant published statements indicating that the Plaintiffs were two of four women involved in the Tim Worner sex scandal. The Plaintiff’s took out an injunction to have their names undisclosed. The trial judge imposed a non-publication order made on the proceedings.
Australian Broadcasting Corporation v O’ Neill[7] was the leading case in determining the circumstances under which interlocutory injunctions are granted. This was a case where the Defendant broadcasted a documentary about the Plaintiff. The Plaintiff was convicted of murdering two boys in Tasmania. The documentary claimed that the Plaintiff had been involved in the disappearance of other children, including the Beaumont children. The Supreme Court granted the injunction to prevent broadcasting of the documentary until the matter had resolved. The High Court held that the injunction was to be removed.
General Case Law Surrounding Sexual Imputations
In Pedavoli v Fairfax Media Publications Pty Ltd[8], the Defendants made publication about the Plaintiff in relation to reasons surrounding her dismissal from her job as an English and Drama teacher. The statements made included that the Plaintiff resigned due to the fact that she was involved in unlawful sexual misconduct with younger male students. The court held in favour of the Plaintiff.
In the infamous case of Nationwide News Pty Ltd v Rush[9], the court made orders in favour of Geoffrey Rush, the Plaintiff in the matter, when the Defendants published imputations alleging that he behaved inappropriately towards a female co-star.
Case Studies
The following are case studies of matters which arose from imputations alleging serious sexual crimes:
Case Study 1
A was an owner of a very well-established sporting school that operated at over 10 locations throughout the state. A was on his way to receiving some honourable awards for his school. A was contacted by a former student, B, to re-join the school a few years after conflict arose between the student and a former instructor. A asked that B attend other locations to avoid conflict with the instructor. B went on to publish a post on Facebook, that was open to the public, stating that A was a paedophile and had sexualised her as a minor. Further, B’s friends commented, shared, and posted several reviews on A’s business page stating that he was a paedophile. After lawyers became involved, B and her friends ceased publications and took down their posts and reviews. Despite that, A lost his chance to receive the honourable awards, any potential new students, and his reputation in the community. Parents will always be cautious, and some may even remove their children from enrolment. There is nothing that could be done to compensate A for such a huge loss.
Case Study 2
In another case, C was on a Tinder date with D where they had intercourse after which C sent D home in an Uber. D made several comments about how much she enjoyed the night. Over the course of a few weeks, C and D continued to text one another. On some occasions, D asked to see C again to which he refused. A few months later, C ran into D’s recent ex-boyfriend, E, at a party. E mentioned to C that D had spoken of the night of their Tinder date and claimed that C had had non-consensual sexual intercourse with her while she was sleeping. C contacted D and asked why she was making such allegations. D contended that it was the truth and that she was afraid of C when she found out. C is unaware of to whom and how many others D has made these false allegations to.
Case Study 3
F and G dated for a year. A few months later, F had a party at his place where G attended and verbally assaulted another guest. F asked G to leave his place. A few days later G went live on a Facebook group and made allegations that F had raped her. There were over four thousand users in that group. Before F commenced legal proceedings, G had apologised claiming that she was drunk and went live on the group to apologise and assured everyone that F had not raped her. Despite her apology, there will always be some users in that group who would believe G’s allegations of rape. Some may not have even seen her apology live and still believe the first allegation.
Conclusion
Unfortunately, defamatory publications that allege behaviours of a sexual nature appear to be some of the most repulsive in defamation claims. Yet, it is also some of the most common types of defamation claims. If you have a defamation enquiry, similar to this article, contact Harris Defamation Lawyers and let us help you resolve it.
