Why Defamation Laws Need to Center Erasure as Violence: Developing Strategies to Combat the Legal Ramifications of the #MeToo Movement Worldwide

Priyal Thakkar. Priyal is a JD candidate (2022) at the Sandra Day O’Connor College of Law at Arizona State University and is an IRLS fellow for the 2020-2021 academic year. She is currently President of the Law Society for Human Rights and serves on the board of the International Law Society. Priyal is interested in international human rights law and strategic litigation.

The #MeToo movement broke the dam on public testimony by victims of sexual violence and flooded social media around the world with long-silenced voices. However, the departure from silence was met not only with applause, but also with litigation.

While retaliatory defamation suits have long been used to silence womxn who speak up about sexual violence, the #MeToo movement has provoked an alarming number of defamation suits worldwide. In Australia, a country with some of the strictest defamation laws, the #MeToo wave trickled back into silence after actor Geoffrey Rush won a defamation case against a newspaper publisher and a journalist and was awarded 2.9 million Australian dollars. France’s Sandra Muller, creator of the hashtag “#balancetonporc” (“rat out your pig”), was also ordered to pay $22,000 in damages after she lost a defamation case.

The #MeToo wave similarly came crashing down on India and made a deafening impact on the country’s feminist history. Survivor stories came pouring in on Twitter and were assembled under the Twitter handle @IndiaMeToo. However, the residue of injustice was quickly replaced with silence as the onslaught of retaliatory defamation suits began, most notably from the former Union minister M.J. Akbar. India belongs to the flock of countries that still have not demolished the draconian structure of criminal defamation. A defendant convicted of criminal defamation in India can get a prison sentence for up to two years.

The #MeToo movement took off in Africa slowly, in part due to the fear of reprisals for speaking out. My work this past summer as an intern with the Initiative for Strategic Litigation in Africa (ISLA) under its Violence Against Women initiative involved researching comparative legislation on civil defamation, specifically the evidentiary considerations and the standard of proof required to sustain a claim of sexual violence in civil actions. Typically, a cause of action for defamation requires that malice or negligence be established. Both are easily proven. For instance, in Kenya, “evidence of malice may be found in the publication itself if the language used is utterly beyond or disproportionate to the facts.” However, defamation suits brought by public officials require the proof of “actual malice.”

The two most common defenses available for defamation are truth and fair comment. These defenses provide no protection to survivors of sexual violence who come forth with their experiences. The defense of truth requires sexual violence to be proven beyond a reasonable doubt, which is the standard of proof employed in criminal cases, in a civil case. Civil cases employ the standard of preponderance of evidence, which is a significantly lower burden of proof. Hence, survivors of sexual violence are required to fight two trials: a criminal trial within a civil trial. This is a gross miscarriage of justice as it requires the defendant to obtain necessary evidence to prove a crime in a civil suit. Moreover, sexual assault is already infamous for being extremely difficult to prove in a court of law, be it in the United States or in many African countries.  

In some states in the United States, the impact of retaliatory defamation suits is blunted, in a limited capacity, by anti-SLAPP legislation, the doctrine of limited purpose public officials, and secure First Amendment rights that place the burden on plaintiffs in defamation cases. Anti-SLAPP legislation requires plaintiffs to present evidence that they are likely to prevail in a lawsuit and also acts as an insurance against the ruinous costs of litigation. Those being sued for defamation can also move to strike the case under anti-SLAPP laws. Furthermore, under the theory of limited purpose public official, once the plaintiff is identified as a limited-purpose public figure in the eyes of the law, the prosecution has to prove a higher burden of malice for the defamation claim to succeed. Together, these practices can afford women a fair chance to fight sexual violence defamation claims.

India has an interesting process on proving sexual violence that arguably leaves women in a better place to fight #metoo defamation claims. In India, a rape victim’s testimony, if found to be reliable. is sufficient to hold the accused guilty in a criminal trial. No corroborating evidence is required. Unfortunately, for most countries around the world, this is not the case. However, collective wisdom from the practices discussed above can help build new ways in which sexual violence defamation suits can be defended.

Jurisprudence around the world can incorporate the ethos of anti-SLAPP laws and require plaintiffs in sexual violence defamation cases to first establish evidence that they are likely to prevail in the lawsuit. Alternatively, or in conjunction, the legislature can lower the evidentiary requirements for defendants to prove only the facts surrounding the plaintiff’s behavior on the day of the alleged crime as sufficient evidence for civil defamation.

While the #MeToo movement rightfully advocates for believing womxn when they share their experiences of violence by giving equal weight to evidence, including testimony, provided by women and understanding that survivors’ stories and actions may not fit some expected models, jurisprudence across the world has not yet evolved around this feminist framework. There is an urgent need for courts to reevaluate the burden of proof required to prevail on a claim of sexual violence in a civil case and abolish the practice of conducting a criminal trial within a civil trial as this practice perpetuates silence. Womxn need to jump through many hurdles – trauma, societal disbelief, cultural shackles, often insensitive police personnel, and emotionally draining litigation – merely to speak their truth; a looming threat of civil penalties should not be one of them. 

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