#MeToo has led to an asphyxiating vortex of litigation | Richard Ackland

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The legal system crashing headlong into #MeTooism provides theatre of an altogether dramatic spectacle.

On stage we find Geoffrey Rush’s defamation claim against the Daily Telegraph for its “King Leer” article, alleging he behaved “inappropriately” towards another actor in the Sydney Theatre Company’s production of the Shakespearian play two years ago. Rush denies all claims.

No less commanding is Craig McLachlan’s litigation against Fairfax, the ABC and actor Christie Whelan Browne. According to his pleadings before the New South Wales supreme court he claims the publications meant he indecently assaulted, sexually harassed, indecently exposed himself and bullied female cast members during the 2014 production of The Rocky Horror Show – allegations he rejects.

Accusers have been prompted to come forward about sexual misconduct in the wake of the allegations of lurid conduct by the Hollywood film producer Harvey Weinstein. Whatever the label – TimesUp, #MeToo, #balancetonporc – women now feel motivated to speak up.

A number of women also levelled allegations against the former TV personality Don Burke, which he denies. Craig McLachlan has been the subject of allegations by five women.

Antony Catalano, the former CEO of Domain Holdings, has gone to his lawyers to reject the Financial Review’s report that the real estate marketing business was run like a “boys club” where female employees were “made to feel uncomfortable”.

Guardian Australia had a story that a 2DayFM executive was fired for allegedly raping a video producer who worked at the radio station.

The calling out of allegedly predatory behaviour is a global movement. The “rat on your pig” movement in France has had a roiling effect in that country.

In the United States, porn stars and Penthouse models are making allegations against Donald Trump and his extramural trysts. In Britain, the defence secretary fell on his sword, so to speak, after a series of allegations surfaced, including lunging at a female journalist’s lips after lunch and repeatedly touching another reporter’s knee.

Maybe some of these outings do not qualify for inclusion within the strict definitional confines of the #MeToo category. The complaint to the Sydney Theatre Company from an actor about Geoffrey Rush was not an instance of a woman loudly declaring her version of events to the world. It only became evident in the defence pleadings that the allegation was made by Eryn Jean Norvill, who played Cordelia opposite Rush.

We now descend into the abyss of legal technicalities.

The NSW supreme court defamation judge, Lucy McCallum, in the first preliminary hearing of the McLachlan case pointed to the “infinite complexity and ambiguity of sexual and sexualised behaviour”. The responses range from:

… people who would dismiss the most inappropriate and unacceptable conduct as being ‘only a joke’, to those of the champions of the #MeToo movement, to the French feminist response to that movement reflected in the statement of the famous French actor Catherine Deneuve.

The difficulty also extends to finding the right words to fit the descriptions used by the media. For instance, the defendants in the McLachlan case unsuccessfully objected to the plaintiff’s claim that the publications mean the actor “is guilty of indecently assaulting, sexually harassing, indecently exposing himself to, and bullying female cast members …”

It was contended that this rolls up several distinct defamatory meanings which makes it harder to defend. McLachlan’s barrister said that the four kinds of conduct described in the pleading “represents a catalogue within a genus”.

Justice McCallum thought that the complexity of the language in the Fairfax articles and the issues raised “defies distillation into a single word or phrase”.

In the Rush case, which is before the federal court of Australia, where judges sit without juries, Justice Michael Wigney has struck out the Telegraph’s defence of truth and set aside a subpoena served on the Sydney Theatre Company seeking documents in relation to the complaints laid against Rush.

The judge found the particulars of the truth defence were deficient. In relation to the alleged “inappropriate” touching by Rush of Norvill, the judge said the “touch” would have occurred on stage, “observed by hundreds of patrons” in circumstances where he had to carry Norvill “and therefore touch her”.

The judge wanted more details about “the touch”.

What exactly was the ‘touch’? What part of Mr Rush relevantly touched the actress? Was it one or both hands or some other part of his body? And what part of the actress’ body was touched? What was the nature and duration of the touch? …

Justice Wigney also thought there might be an innocent explanation for Rush to be in the STC’s women’s bathroom at the same time as Norvill. The claim is he stood outside a cubicle she occupied until she told him to “fuck off”.

The judge questioned whether Rush knew she was in the bathroom before he entered.

If Mr Rush had another reason for entering the bathroom it might not be able to be characterised as ‘inappropriate’.

He also felt obliged to comment on the motivation behind the Telegraph’s headlines “King Leer” and “Star’s Bard Behaviour”, saying:

It would seem that the sub-editors, or whoever it was responsible for the headlines and sub-headlines, simply could not help themselves.

Nationwide News has flagged its intention to seek leave to appeal against the strikeout decision, to be able to replead its defences and to cross sue the Sydney Theatre Company, which provided information to the paper on which its story about Rush was based.

If Justice Wigney’s ruling stands, then the newspaper and its reporter Jonathon Moran are in difficulty. To have a reasonable prospect of success they need to be able to defend the story on the ground that it was true. “It’s true or it’s nothing,” is the refrain media lawyers sing all the time.

That invariably means the complainant will have to give evidence and as we saw in the Chris Gayle defamation case against Fairfax, women who blow the whistle are also in for a torrid time in the witness box.

Christie Whelan Browne, one of the complainants in the McLachlan case, is now also a defendant as well as a witness.

In France, the creator of that country’s #MeToo movement, Sandra Muller, is being sued for defamation by her former boss who she accused of sexual harassment.

Former Fox News employee Laurie Dhue is suing Bill O’Reilly over claims he made that allegations against him were “unfounded”. She had previously received settlements in relation to O’Reilly’s behaviour.

Complainants complain, media organisations that publish the complaints are sued, the perpetrators complain about their victims and the victims sue the perpetrators.

This might well be described as an asphyxiating vortex of litigation.

In a slightly different version on the theme, Stormy Daniels, who is a complainant but hardly a victim, is suing Donald Trump’s lawyer Michael Cohen for casting doubt on the veracity of her allegations against the president.

Defamation proceedings are far from a satisfactory way for aggrieved celebrities to regain their footing. This is a long, complex, expensive and risky path to undo the harm.

In Canada Patrick Brown, a conservative politician in Ontario accused of sexual misconduct, mounted a vehement social media campaign proclaiming his innocence and gave selected interviews to try and rehabilitate his reputation, which he said had been damaged by “sloppy journalism”. He is also suing the TV network which broadcast the allegations.

It’s interesting that in January, following the publication of the allegations against him, McLachlan gave an extensive and exclusive interview to the Sunday Telegraph. It was a carefully choreographed piece, which didn’t press for details about his alleged behaviour.

The article said:

There were no restrictions on the interview, but, citing legal advice, the actor would not comment on the specific allegations made against him.

With his partner, orchestra conductor Vanessa Scammell, by his side, he conceded he had a ‘Benny Hill’ sense of humour but had said he didn’t come close ‘in the filth department’ to other cast members.

“By God, I will fight this,” he added.

Only seven weeks earlier the Telegraph published its story about Geoffrey Rush, which just goes to show that the media is perfectly capable of straddling both sides of the street.

  • Richard Ackland is a Guardian Australia columnist

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