Defamation Law and Epistemic Harm in the #MeToo Era

Abstract

ABSTRACT The #MeToo movement has encouraged victim-survivors of sexual misconduct to make use of social media and mass media journalism to report incidents in ways that are contrary to established legal norms. In part, this is an acknowledgement that traditional legal processes achieve little in responding to gendered harm. However, media companies and victim-survivors have increasingly been sued by alleged perpetrators for defamation. Because Australian defamation law presumes the falsity of alleged defamatory statements, victim-survivors are often required to give evidence in defamation proceedings in an effort to displace the presumption and prove that the allegations were ‘substantially true’ as a defence. This article identifies the issues facing victim-survivors who become involved in defamation disputes arising from allegations of sexual misconduct or gendered harm. It emphasises that in this context, victim-survivors encounter the same testimonial injustice typically experienced in the criminal jurisdiction, which harms them specifically in their capacity as knowers or givers of knowledge.