The #MeToo movement has toppled dozens of prominent men in American society over the past 18 months. Some other English-speaking countries, however, have only seen modest or muted reckonings. As Australia’s ABC News put it in May, “There’s been a steady stream of #MeToo headlines out of the US, but it’s more of a trickle in Australia.”
What explains this disparity? Are Australian men simply more virtuous than their American counterparts?
It’s doubtful. The likelier answer is that their misdeeds are better shielded from public scrutiny by their respective countries’ libel laws. The American legal system gives journalists and publications extraordinarily broad leeway when publishing allegations that may be considered defamatory by the subject. Other English-speaking countries, especially those that inherited the British legal system, offer only a lesser degree of protection to reporters from litigation.
Those laws have consequences not only for those with stories to tell, but for democratic society as a whole. Lower libel standards all too often allow wealthy and powerful individuals to use their resources to bully those whom they’ve wronged—and the news organizations that learn about it—into silence. It’s no surprise that people like President Donald Trump are so hostile to press-freedom laws as they currently stand. It’s also why efforts to undermine them should be vigorously opposed.
In Australia right now, Geoffrey Rush, a star in the Pirates of the Caribbean franchise and one of his country’s most famous actors, is locked in a legal battle with The Daily Telegraph. The Australian newspaper published vague allegations that in the fall of 2017, Rush behaved inappropriately with an unnamed fellow cast member during a theater performance in Sydney. Rush denied the allegations and sued the Telegraph last December in federal court.
During the trial this fall, actress Eryn Jean Norvill testified that she was the cast member mentioned in the Telegraph story, though she said she had only made a confidential complaint to the theater company and hadn’t contacted the newspaper. She described a persistent pattern of unwanted contact and gestures by Rush during rehearsals, saying they made her feel “trapped” and “frightened.” A verdict is expected in early 2019, though it’s unclear whether her account persuaded the judge. “It is so vague he may not know what he has allegedly done,” he remarked in court during the trial.
Defamation trials are a familiar sight in Australia and other countries that inherited the British legal system. That Rush’s case even went to trial shows how different the country’s legal standards are from America’s, where the lawsuit likely would have been quashed at an earlier stage in the proceedings. “Geoffrey Rush would have zero chance of securing a successful libel verdict if he sued in the United States over the ‘inappropriate behaviour’ story,” Australian legal journalist Richard Ackland wrote last month.
Under American law, whoever sues a journalist or publication for libel must prove that the defamatory material was false. If they’re a public figure—someone with power and influence—they must also show that the material was published with “actual malice” and a “reckless disregard” for the truth. The Supreme Court first established this high threshold in the landmark 1964 case New York Times Co. v. Sullivan. Justice William Brennan, writing for the majority, cited the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Australia does not have an equivalent to the First Amendment or even a Bill of Rights. The country’s laws instead place the burden on the journalist or publication to prove in court that what they wrote is true. This makes it more legally perilous to publish allegations about events that took place years or decades earlier, or to rely upon personal accounts and experiences alone. In cases involving sexual misconduct that span an entire person’s career, it’s a formidable threshold to overcome. Litigation is expensive, and many news outlets—not to mention most individual journalists—can’t afford an extended, costly legal battle.
Australia’s woeful defamation laws have even allowed Sydney to seize, from London, the title of “libel capital of the world.” Britain was notorious for its weak libel protections before Parliament heightened its standards in 2013. The Sydney Morning Herald reported last year that the Australian province of New South Wales, which includes Sydney, sees as many defamation lawsuits as England and Wales, which has eight times the population. Yael Stone, an actress who came forward this month with similar allegations against Rush, recently told the Times’ Bari Weiss that she feared going public because of the potential legal hazards.
Australia’s aversion to press freedom extends beyond libel laws. Earlier this month, a local court convicted Cardinal George Pell on five counts related to sexual-abuse charges that span decades. Pell, one of the most senior Catholic clergy ever accused of sexual abuse, was a prominent Vatican figure and a close adviser of Pope Francis until the allegations became public. His conviction was, by any definition, a major news story.
But Australian media outlets were barred by a judicial order from publishing any details about Pell’s conviction. The result was surreal: Australian media outlets either obliquely referred to the conviction of an unnamed person, or simply chose not to report the news at all. The Daily Telegraph responded by publishing a front page that read “IT’S THE NATION’S BIGGEST STORY” with no other description of what happened and an editorial denouncing the state of affairs. Thanks to social media, many Australians were able to learn what happened, rendering the entire state of affairs even more absurd.
Even foreign news outlets with reporters in Australia are affected. The New York Times published an unusual article on the quandary and its implications last week, all without mentioning any names. “The Times is not publishing the latest news of the case online, and it blocked delivery of the Friday print edition to Australia, to comply with the judge’s order,” reporter Damien Cave wrote. “The Times’s lawyers in Australia have advised the organization that it is subject to local law because it maintains a bureau in the country.” (The New Republic does not have an Australian bureau.)
Cave noted that Australian officials defend orders like these on the idea that suppressing media coverage is necessary to insulate potential jurors from bias. Pell, for instance, is expected to face more criminal trials in Australia related to the allegations against him. The American judicial system has much greater faith than its Australian counterpart in the average person’s ability to render a verdict based on the evidence presented to them in open court. In extraordinary circumstances, a U.S. judge could simply order the jury to be sequestered for the duration of the trial. Depriving a handful of jurors of the free press is far preferable to depriving a nation of it.
Press-freedom cases and legal thresholds for libel lawsuits aren’t the sexiest topics in the world, but they play a profound and often invisible impact on a democratic society. They afford the less powerful members of society a measure of protection from the litigious whims of the wealthy and the well-connected. They help make possible a public discourse in which allegations of wrongdoing can be made without fear of reprisal and bankruptcy. And they tilt the playing field away from those who are most likely to abuse it.
It’s no surprise, then, that Trump is the foremost opponent of America’s libel laws. His public and private life are defined by unsavory behaviors: allegations of tax evasion and consumer fraud, accounts of sexual misconduct by at least nineteen women, hush-money payments for two alleged extramarital affairs, and more. Trump has a lot to hide, and he’s lamented his inability to hide it. But because the nation’s libel laws are written at the state level and shaped by Supreme Court precedents, the president has virtually no power to change them.
That hasn’t dissuaded him from threatening to do so. “We’re going to open up those libel laws,” he told supporters on the campaign trail. “So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.” His frustration is a high compliment for the American approach to libel and press freedom, and a good example of why Australians should rethink theirs.