A note to men seeking vindication through defamation: you might not like the reckoning

Tides are turning all over the place. Women have shredded the man-friendly Liberal Party, relegating its bizarre brand of toxic masculinity to what should be a long term in opposition and maybe even electoral oblivion.

Is it coincidental that another front in the gender war, the one being fought in our defamation courts, has also turned decidedly against the previously ascendant males? Short answer: no. Observed from altitude, these shifts are part of a wider trend.

It had been widely thought, after Geoffrey Rush’s huge victory in his defamation case against The Daily Telegraph, that Australia’s plaintiff-leaning defamation laws had killed off — or at least crippled — the Me Too movement here. More significantly, a bunch of men read into that case’s outcome a promise that was never really there: that in defamation litigation lies vindication, happily laced with buckets of money.

Thus it became a default response, when one’s number came up as the next “target” of a Me Too accusation, to sue. Accordingly, we were promised the spectacle of the defamation trials of the century, as Christian Porter launched proceedings against the ABC and journalist Louise Milligan, and Craig McLachlan did likewise to the ABC, Nine and one of his alleged victims, Christie Whelan Browne.

Neither case, as it turns out, could quite have shaded Ben Roberts-Smith’s epic war of attrition, which is still going and may never end. We’ll never know now, of course, because neither case will proceed. Porter discontinued his last year, in return for some legal costs and no apology, and McLachlan sensationally blew up his own case last week just before the defence was about to roll out its long list of witnesses of truth. For each man, or whoever was funding him, it was an expensive exercise in futility and a perfect case study of the Streisand Effect.

We can also add former defence minister Peter Dutton to the list, following his loss in Shane Bazzi’s appeal against the lower court finding that Bazzi had defamed Dutton by calling him a “rape apologist”. No vindication there either, but another very large bill.

The law has not relevantly changed, and the courts have not shifted their view. Australia’s defamation law remains ridiculously repressive of free speech and maintains its chilling effect on public interest journalism and the ability of survivors to speak their truths. However, achieving silence by the threat of a defamation suit is very different from actually winning it.

As I said to Jess Hill when she interviewed me for her Quarterly Essay “The Reckoning”, pursuing defamation is a high-risk strategy for any alleged perpetrator, because they alone know how many victims are out there. Going after the first one who speaks out, especially suing them personally, may achieve the purpose of silencing all the others; or it may not. 

I have nothing to say about the allegations against Porter or McLachlan; I don’t know if they’re true. The fact that they dropped their cases means they have to live with the allegations remaining live and untested. All they achieved by commencing and then dropping their lawsuits was to amplify the damage to their own reputations. That pair of choices is on them alone.

If they saw the Rush case as a happy precedent for their own situations, then they learned precisely the wrong lessons. Rush won his case because the Telegraph lost it, the moment it went to print with its half-arsed hatchet job. It hadn’t spoken to the alleged victim (who did not want her allegation made public), it had done none of the work required to properly stack up its defence, and it sensationalised the story in ways that only a Murdoch tabloid can. It deserved to lose.

But there is no comparison between the shithouse efforts of the trashy Telegraph and the careful forensic work that goes into an investigative piece when Kate McClymont or Louise Milligan is on the job. When Porter sued, the ABC hit him with an intricately detailed defence (still largely suppressed). McLachlan was about to watch 11 female defence witnesses paraded into court to describe the sexual harassment that they allege he perpetrated on them.

That is not to say that either man would have lost his case if he hadn’t dropped it; that’s unknowable now. But it is fair to suggest that the choice he ultimately made was unsurprising. It was always going to be ugly, expensive and risky; from my perspective, the calculus never favoured suing.

Meanwhile, former Coalition MP Andrew Laming’s defamation case continues. He’s suing Nine for, in his words, painting him as a “lecherous” person and a “pervert” who took a photo of a woman’s buttocks without her knowledge for sexual gratification. Nine is defending hard, running a contextual truth defence in which it says he is a “creep” who is “unfit to be a member of Parliament”.

Well, Laming is no longer in Parliament, having retired at the election to pursue his other interests, but he still wants his reputation restored. We’ll see how that plays out for him.

What we can say for sure is that what might for a while have been thought to be an easy pathway for men accused — the defamation suit — has turned out to be what it always in reality was: a minefield. That realisation is, like the election result itself, part of the reckoning.

Michael Bradley provided legal representation to the woman known as Kate, who alleged she was raped by Christian Porter in January 1988.  Porter denies the allegation.