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Pictured: Sarah Hanson Young
It all began on 28 June, during a parliamentary debate about pepper sprays and violence against women. Senator David Leyonhjelm shouted at Senator Sarah Hanson-Young to “stop shagging men.”
She demanded an apology. He replied with an unprintable suggestion, and things promptly got worse. Senator Leyonhjelm repeated his comments and other accusations to various media outlets, including Sky News, the ABC’s 7.30 program, Channel Ten’s The Project and Melbourne radio station 3AW. Senator Hanson-Young, he implied, was a “hypocrite” for “hating men” and a “slut, shagging men indiscriminately.” Hanson-Young has declared that she is suing Senator Leyonhjelm for defamation.
“Slut shaming” is coarse; it’s crude; it’s obnoxious – and it’s all too common. But is it defamation? The question is more challenging than you might think.
What is defamation?
Under NSW’s Defamation Act 2005, “defamation” is:
1. an untrue statement of fact (spoken, written or communicated by gestures or symbols);
2. about an identifiable person or small group of people;
3. communicated to a third party;
4. which injures the personal or business reputation of the person claiming to be defamed
That definition opens up a lot of exceptions – true statements, statements of honest opinion, statements that no one else heard or read and statements that, although abusive, do no harm to someone’s reputation. Can someone whose reputation is already in tatters be defamed? What about a public figure? Allegations of promiscuity usually clear the bar of being harmful to someone’s reputation, but these standards are flexible, changeable and highly fact-specific.
There are also other exceptions for specific situations in which freedom of expression is thought to be especially important. These include statements made in court and, more importantly, debates on the floor of Parliament. So, the question about whether Senator Leyonhjelm’s comments were defamatory is limited to his media interviews.
What are Sarah Hanson-Young’s legal rights?
Senator Hanson-Young has already taken the first step, which is to issue a “concerns notice,” which is basically a demand for an apology. The period of time during which Senator Leyonhjelm could have made amends is now past, so the next step is a lawsuit.
She may seek money damages for the damage done to her reputation. She has announced that she intends to donate any recovery to charities, including Plan International Australia, which tackles harassment and abuse of women in Australia and overseas.
But will she win, and if so, how much?
Senator Hanson-Young’s claim certainly seems to check many of the necessary boxes, but Senator Leyonhjelm has mounted a defense, characterising his comments as “abusive,” but not actually harmful to reputation. That may be a major hurdle for someone who is a well-known public figure, like Senator Hanson-Young, because many people already have firmly held convictions.
The biggest problem for ordinary people who feel that they have been defamed is that a monetary award may not be an effective way to deal with harm to reputation. The damage is done when the lie is spread, and a court battle may actually make things worse by bringing greater attention to it.
Further, damage, especially to personal reputation, can be difficult to measure monetarily. A financial recovery, while a moral victory, may not be particularly large. For both of these reasons, an apology and retraction may be more valuable.
About Rolf Howard
Rolf is Managing Partner of Owen Hodge Lawyers. He has been in the legal practice since 1986 and a partner of Owen Hodge Lawyers since 1992. Rolf focuses on assisting clients to proactively manage legal responsibilities and opportunities to achieve competitive advantage. Rolf concentrates on business planning and formation, directors’ duties, corporate governance, fund raising and business succession. His major interest is to assist business owners and their financial advisers plan and implement strategies to build and exit from successful businesses.