Does the Current Law of Defamation Silence Victims of Sexual Harassment?

humans who caused or contributed to causing their production and deployment. LAWs, I submit, will therefore never permit humans to abdicate their responsibility for grievous breaches of IHL.

LAWs exist and more are coming. It is therefore imperative that we develop and implement a regime for allocating individual responsibility under IHL which accurately reflects the culpable contributions of all those who participate in the production and deployment of LAWs. This article is my contribution to that project.

Does the Current Law of Defamation Silence Victims of Sexual Harassment?

Yuming Chen

The law of defamation is carefully balanced to safeguard both the right to private life and freedom of expression, both of which are important human rights protected under the ECHR. However, given that in common law a statement can be held as defamatory despite being true, the law is not immune from abuse. In Wilson v Mendelsohn it was held by the High Court that posting descriptions of the defendant’s behaviour which the claimant considered to be harassment on social media was defamatory to the defendant’s reputation. The impact of this decision is yet to manifest, but it is not hard to fathom how it could open the floodgates for future retaliatory lawsuits against accusers in sexual harassment cases. Perhaps the most difficult part in suing for sexual harassment is the gathering of evidence, especially when the alleged behaviours took place in a private or domestic scenario. A significant merit of the #MeToo movement is the granting of a voice to victims of sexual offences, so that they don’t have to go through costly and time-consuming lawsuits to expose the perpetrators. However, court decisions like Wilson v Mendelsohn will undoubtedly have a chilling effect on these public participations, stifling the voices of victims with the possibility of being counterclaimed by defamation.

Moreover, a victim of sexual harassment might not always be legally able to defend themselves when being sued for defamation. Truth is a well-known defence to defamation claims. According to s.2 of the Defamation Act 2013, if the defendant is able to establish the imputation conveyed by the statement complained of is substantially true, the defamation claim will fail; nevertheless, the burden of proof rests with the defendant in raising that

defence. It is worth noting that the standard of proof in showing that a statement is substantially true is that of the ordinary civil standard, i.e. the balance of probability, as per Mr Justice Warby in Theedom v Nourish Training Ltd. Arguably, this is a higher threshold in comparison to the required standard of proof for sexual harassment claims outlined in s.136 of the Equality Act 2010, which involves a two-stage test. In the first stage the claimant needs to prove facts which would allow the court to find that an unlawful act has been committed by the defendant; and if the claimant surpasses this stage, the burden of proof will shift to the defendant to show that the alleged act did not occur. The intention of this burden-shifting approach is to take the pressure off the victim’s shoulders, but the defamation claim might become a secondary tool for perpetrators.

Other jurisdictions have tackled this problem with anti-SLAPP legislation. SLAPP refers to Strategic Lawsuits Against Public Participation, i.e. lawsuits which intend to silence critics by burdening them with the cost of a legal defence. 30 US states have anti-SLAPP laws that keep cases with little or no merit out of the courts, protecting the defendants from these vexatious suits. A report published by the UK Anti-SLAPP Coalition in 2020 outlined several suggestions on how to stop SLAPP suits from further exploiting the UK law system, by introducing antiSLAPP laws which contains the following features:

• Accelerated Procedures: any lawsuit targeting acts of public participation should be subject to a merits test (for example, the probability of success) at the earliest possible stage in proceedings. • Sanctions: where the defendant is successful, full legal costs should

be awarded to them, with the possibility of punitive or exemplary damages. • Stay of Proceedings: Pending resolution of the anti-SLAPP motion, all disclosure obligations should be suspended so that the

SLAPP claimants cannot abuse this process to cause nuisance for the defendant.

Given the current state of the law regarding defamation, as discussed above, the suggestions made by the UK AntiSLAPP Coalition should be taken seriously lest the statute should be used as an instrument of oppression.