#MeToo six years on: how the courts are handling sexual misconduct defamation claims – Percy Preston

Hay v Cresswell [2023] EWHC 882 (KB) and Aaronson v Stones [2023] EWHC 2399 (KB) both centred on allegations, published online by the Defendants, that the Claimants had committed acts of sexual violence. In both cases, the Defendants raised the defences of truth and publication on a matter of public interest (respectively, sections 2 and 4 of the Defamation Act 2013).  In Hay, the Defendant successfully defended her claim. In Aaronson, the Court awarded the Claimant damages of £110,000.

Background

The Claimant in Hay, William Hay, sued the Defendant, Nina Cresswell, in relation to social media posts, an email and a blog post Ms Cresswell published in June and July 2020, accusing Mr Hay of sexually assaulting her in 2010.  In May of that year, Ms Cresswell was on a night out in Sunderland when she was introduced to the Claimant, Mr Hay, a tattoo artist.  After Mr Hay offered to accompany Ms Cresswell home, he violently sexually assaulted her.  Ms Creswell reported this to Northumberland police immediately afterwards, but no action was taken against Mr Hay.  In the wake of the MeToo movement, and following a raft of allegations of sexual abuse from within the tattoo industry, Ms Cresswell decided to publicise her experiences with the Claimant, initially in a blog published in June 2020 and subsequently in an email to Mr Hay’s employer, a tattoo parlour, and in social media posts in July 2020.

The Claimant in Aaronson, Jack Aaronson (also known as ‘Dominc Ford’) is a US-based entrepreneur who works in the gay porn industry. His business, JustFor.Fans, provides an online platform for adult film performers to earn money by uploading content to the platform which customers can access for a subscription fee.  The Defendant, Mr Stones, worked in the adult entertainment industry for several years, and ran a profile on the Claimant’s website.  In June 2020, following an apparent falling out with the Claimant, Mr Stones published a series of tweets alleging, that the Claimant was a serial rapist and that he had raped Cooper Tennent, a fellow model who operated an account on the Claimant’s website.  In March 2021, the Defendant repeated these allegations in an interview published on YouTube.

The law

Given the severity of the allegations and the widespread dissemination of the publications complained of, serious harm to reputation was not meaningfully in issue in either case.  In both cases, the Defendants raised the same defences: truth and publication on a matter of public interest.

Substantial truth

In Hay, Williams J found that the Claimant’s allegations were substantially true. Although Northumberland Police had taken little to no action at the time, and the complainant acknowledged that she was drunk at the time of the assault, her evidence was persuasive.  Any inconsistencies in her account were minor and explained by the passage of time and the traumatic nature of the events in question. By contrast, the Claimant’s evidence was largely unsatisfactory. During proceedings, he had changed his account of what happened on the evening in question, initially denying that he had left the club with Ms Cresswell and subsequently claiming that he had left the club with her, walked her home and ‘nearly kissed her’.  The Claimant’s inconsistency proved fatal to his claim.

In Aaronson, the critical issue in relation to the publications about Mr Tennent was consent.  The judge determined that the ordinary meaning of the word rape included the imputation that the perpetrator held no reasonable belief that the complainant was consenting [217].  Both parties’ cases rested on a video depicting intercourse between the Claimant and his alleged victim, Mr Tennent.  Knowles J found that the video did not support Mr Tennent’s witness evidence that he had withdrawn consent during sex [267-293].  Furthermore, the judge found that much of Mr Tennent’s witness evidence on the question of consent was equivocal and sat uneasily with the contemporaneous documentary evidence and the history between him and the Claimant.  The Court therefore found that the Defendant had wrongly accused the Claimant of being a rapist and a serial rapist.

Public interest 

Like truth, the public interest defence is fact specific.  However, the Court’s approach in both cases suggests we can draw some tentative conclusions on how the Court is likely to assess the public interest in publications alleging sexual violence.

There are three questions the Court must address on the question of whether publication is on a matter of public interest:

1. Was the statement complained of on a matter of public interest, or did it form part of such a statement?
2. If so, did the defendant believe that publishing the statement complained of was in the public interest?
3. If so, was that belief reasonable?

The onus is on the defendant to persuade the Court that the answer to each of these questions is ‘yes’.

In Cresswell, the Defendant discharged this burden.  The Court decided that the publications were on a matter of public interest. The Defendant successfully relied on three respects in which she claimed that the statement was on a matter of public interest, namely: the prevalence of sexual abuse in the tattoo industry; the need to protect women from sexual abuse; and the failure to prosecute sexual abuse cases. The Judge held that all these matters were in the public interest and that the Defendant’s publications were on such matters.  Furthermore, the Court found that the Defendant believed that publishing her statements was in the public interest and, in any event, the Claimant had never seriously impugned the Defendant’s motives.  Finally, the Defendant’s belief was reasonable because, amongst other things, she was writing from her experience and there were no other ”checks or inquiries that standards of reasonableness required her to conduct to verify the information that she proposed to publish before she did so” [210].

In Aaronson, the Court answered each question in the negative.  None of the Defendant’s publications were on a matter of public interest, for the following reasons:

1. The principal subject matter of the Defendant’s publications was that the Claimant had committed rape. The judge cited Bloomberg LP v ZXC [2022] UKSC 5 to the effect that the general or legitimate starting point was that prior to charge, a person under investigation for a crime has a reasonable expectation of privacy in respect of information relating to that investigation. This was perhaps surprising because ZXC was not a defamation claim and, moreover, the expectation of privacy in ZXC arose because the state was investigating the claimant (not because an allegation of criminality had been made).  Mr Aaronson had not been investigated by the police.  Nevertheless, the case was said to illustrate ”the sensitivities involved in publicly accusing someone of a criminal offence” and the need for the Court ”to scrutinise with care the suggested public interest in the Defendant’s repeated accusations that the Claimant was a rapist” [339].
2. The Claimant was not a public figure for the purposes of the caselaw on section 4.
3. Had the Defendant contextualised his allegations against the Claimant as an illustrative example of a generally recognised problem of sexual abuse in the adult entertainment industry, then the publications may have been on a matter of public interest. However, he had not done so, and as a result, the publications read as ‘personal attacks’.

Although the Defendant’s section 4 defence fell at the first hurdle in Aaronson, the judge nevertheless considered the other two questions.  He concluded that the Defendant had entirely failed to turn his mind to how each of the publications were said to be in the public interest. Furthermore, the Defendant’s belief in the public interest of publication was not reasonable. The Defendant was reporting allegations of which he had no firsthand knowledge.  Furthermore, the Defendant had performed the role of a journalist and was to be held to the standards that accompany such a responsibility.  He had not met those standards for the following reasons, amongst others:

1. The publications all made allegations of serious criminality against the Claimant. Should those allegations not be proven, the public would be seriously misled; the Court found that the allegations were not proven.
2. Any link to the adult industry was peripheral at most and the publications were therefore of no, or very limited, public concern.
3. The Defendant had fallen out with the Claimant over unrelated issues at exactly the time he began publishing the allegations.
4. The Defendant made little to no attempt to verify whether the allegations were true. He took Mr Tennent’s allegations against the Claimant at face value.
5. At no stage did the Defendant ask the Claimant about his version of events and the publications did not contain the Claimant’s account of what had happened.
6. The overall tone of the publications was ‘abusive, aggressive and sensational’.

The defence failed and the claim succeeded.  The Court awarded the Claimant £110,000 in damages.

Conclusion

A truth defence will ultimately depend on the strength of the evidence and the judge’s assessment of the witnesses’ credibility.  As such, it is difficult to extrapolate general lessons from the particular facts of these cases.  However, two differences between the cases might explain the Court’s opposed findings on the question of substantial truth. First, in Hay, the allegations were made by the complainant herself, whereas in Stones, the Defendant was making allegations that the Claimant was a serial rapist and that he had raped a third party, Cooper Tennent.   Second, the cases differed in respect of what the defendant had to show was substantially true. In Creswell, the critical factual dispute was whether the Claimant had done the acts complained of by the Defendant.  In Aaronson, there was no dispute that the Claimant had had sex with Mr Tennent. Here, the central question (at least in relation to the parts of the words complained of that concerned his alleged assault of Mr Tennent) was whether Mr Tennent had withdrawn consent during sex.

More generally, the existence of an unrelated dispute between the parties may be considered as a potential motive for a defendant making a false allegation.

As regards the section 4 defence, it seems that an allegation of sexual violence divorced of any reference to systemic abuse, a wider public interest topic or concerning a public interest figure, may not automatically qualify as publication on a matter of public interest. Individuals wishing to publish allegations of sexual abuse ought to be careful when considering how to frame their allegations.  Equally, a person who is the subject of a sexual assault allegation may have a stronger claim if they are not obviously a public figure and the allegations against them are not couched in broader public interest terms.

The cases also show that the public interest test will be applied differently in circumstances where the complainant is responsible for publishing the alleged libel.  A complainant would obviously not need to verify their experiences and the third ‘stage’ of the public interest test is accordingly less onerous. There are more burdensome requirements – akin to those placed on a journalist –  if a person is publicising allegations of which they have no first hand knowledge. In these circumstances, a Defendant, following Aaronson, might be expected to question the complainant’s account, and put the allegations to the alleged perpetrator before publicising them.

Inevitably, naming and shaming perpetrators of sexual abuse is a risky business.  Nevertheless, where it is done responsibly then it may be possible to defeat a libel claim.  Conversely, bringing a libel claim over an allegation of sexual misconduct can carry significant risk for a claimant – including the risk that the allegation will be found to be substantially true.

This post originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks.