False Sexual Allegations & Defamation Claims


Article Summary

This article provides a comprehensive examination of the complex interplay between defamation law and false sexual allegations in Australia, highlighting its profound impact on individuals and the legal system. Readers can expect an insightful exploration into several high-profile legal cases where individuals have pursued defamation claims in response to accusations of sexual misconduct. The discussion extends to the intricate legal challenges faced by parties on both sides of such cases.

The article outlines key legal battles, such as the notable case involving actor Geoffrey Rush and The Daily Telegraph, which serve as illustrations of how defamation actions unfold in the realm of sexual assault allegations. Each case study is presented to underscore the delicate balance courts must strike between protecting reputations and ensuring justice is served, reflecting on the broader implications for public perception and legal standards concerning sexual misconduct.

Moreover, this article delves into the serious consequences for individuals who are falsely accused of sexual assault, discussing the extensive emotional, social, and financial impacts these accusations can carry. It also provides statistical insights into the prevalence of false claims, offering a nuanced view on the contentious nature of such statistics and the challenges inherent in quantifying false allegations.

Legal practitioners and the general public will find valuable information on the legal defences available in defamation cases, particularly the qualified privilege defence, and how it is applied in cases involving false accusations of sexual misconduct.

Overall, the article by our defamation lawyers serves as an essential resource for understanding the dynamics of defamation within the context of sexual assault allegations, emphasising the need for meticulous legal scrutiny and the pursuit of justice for all involved parties. It is a crucial read for anyone looking to comprehend the intersections of media influence, legal repercussions, and individual rights in the wake of such serious allegations.

Table of Contents

Defamation & False Sexual Allegations

In recent years, the intersection of defamation law and false sexual allegations (such as rape, sexual assault, and paedophilia) has formed a complex battleground in courts around Australia.

High-profile cases such as the Brittany Higgins case often highlight the delicate balance between protecting reputations and upholding justice for victims of sexual misconduct.

In this article, our Queensland defamation solicitors explore several significant legal battles where individuals have turned to defamation action in response to allegations of sexual assault, illustrating the nuanced challenges and consequences faced by all parties involved.

From celebrated actor Geoffrey Rush’s victory over The Daily Telegraph, which resulted in a hefty damages award for defamatory false sexual allegations of inappropriate behaviour, to the contentious disputes involving political figures and media professionals, these cases shed light on the multifaceted nature of defamation within the context of sexual assault accusations.

Each defamation case, whether it ends in vindication or condemnation, underscores the critical need for rigorous standards of proof and the potential for substantial legal repercussions.

The discourse surrounding these cases not only reflects evolving legal standards but also influences public perception of sexual misconduct and defamation.

As courts navigate these thorny issues, the outcomes of such cases will likely continue to shape the legal landscape for defamation and sexual assault allegations, prompting a re-evaluation of how society addresses and adjudicates claims of such severe and sensitive nature.

This is a difficult subject and the content of this article may be challenging or distressing for some readers. We aim to avoid causing any distress, and if you find yourself affected, please stop reading and know that support services are available to help:

  1. 1800RESPECT – 1800 737 732.
  2. Lifeline – 13 11 14.

Wrongfully Accused of Sexual Assault

Blackstone’s Ratio says: “It is better that ten guilty persons escape than that one innocent suffer” – William Blackstone in Commentaries on the Laws of England, published in the 1760s.

While often overlooked, false accusations of sexual assault do occur and their impacts are far from trivial. These accusations carry significant weight and consequences, as even those exonerated may face devastating repercussions.  This can include:

  1. Reputational Damage – Even if acquitted, the accused may suffer irreparable harm to their reputation, which can affect personal and professional relationships.
  2. Difficulty in Future Relationships – The lingering doubt and trust issues can make it difficult to form new relationships or maintain existing ones.
  3. Emotional and Psychological Trauma – The stress and stigma of being accused can lead to anxiety, depression, and post-traumatic stress disorder (PTSD).
  4. Employment Challenges – Individuals may face suspension or termination from their jobs and may find it difficult to secure future employment due to the stigma of the accusation.
  5. Financial Strain – Legal criminal defence costs can be substantial, and the accused may also lose income during the legal process or as a result of job loss.
  6. Impact on Family and Relationships – Relationships with family, friends, and significant others can be strained or destroyed by the allegations.
  7. Legal Consequences – Even if not convicted, the legal process can be long and invasive, potentially leading to other legal issues or complications.
  8. Permanent Record Implications – Even if charges are dropped or the accused is acquitted, arrest records or media reports may still be accessible to the public.
  9. Physical Health Issues – The stress and anxiety associated with false accusations can also lead to physical health problems, such as high blood pressure and heart disease.
  10. Social Isolation – Accused individuals may experience ostracism from their community and social networks, leading to isolation and loneliness.

The effects range from severe psychological trauma and the disruption of personal relationships to the potential loss of employment and financial burdens due to legal costs.

Furthermore, the shadow of such allegations can linger long after a legal verdict, affecting every aspect of a person’s life, including their reputation and social connections. Thus, the ramifications of false accusations extend well beyond the legal domain, deeply affecting those accused.

How Common Are False Sexual Allegations?

Wall, L., & Tarczon, C. (2013). True or false? The contested terrain of false allegations (ACSSA Research Summary). Melbourne: Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies, states:

Recent literature around false reports adds little in terms of arriving at a definitive figure about just how common they are. This is despite one key analysis of 10 years of reports concluding it is a figure of between 2% and 10% (Lisak et al., 2010).

You can read the report here.

This number is contested as unreliable for a number of reasons; however, it can give a basic idea of what Lisak et al found in their study.

In the ABS Recorded Crime – Victims, it states:

The number of victims of sexual assault recorded by police increased by 3% (1,072 victims) from the previous year to 32,146 victims in 2022.

CPS Report in the UK

A report from the Crown Prosecution Service (CPS) by Alison Levitt QC et al (now Her Honour Judge Levitt KC) provides a detailed analysis of the number and nature of cases involving allegedly false allegations of rape or domestic violence over a specific period. Here are the key statistics regarding false rape and sexual assault allegations:

Around 2% of rape allegations were found to be false allegations according to this report by Alison Levitt QC (now Her Honour Judge Levitt KC).

QUT Meta Analysis

Further, in a meta‐analysis of false reporting rates by Claire Ferguson of QUT, Faculty of Law, School of Justice and John Malouff, University of New England, presents a comprehensive analysis of the rates of confirmed false reports of sexual assault to the police, utilising meta-analysis techniques.

The meta-analysis, which included seven studies where reported sexual assault cases were evaluated to determine the rate of confirmed false reports, calculated an overall false report rate of 5.2% (with a 95% confidence interval of 3.0% to 8.9%).

The meta-analysis underscores that confirmed false allegations of sexual assault made to police occur at a rate of just over 5%, indicating that while false reports are relatively rare, they do happen and are a serious concern within the context of all sexual assault reports.

What is the Number?

The actual number is disputed, but according to the above studies it is somewhere between 2% and 5%.  With the total number of rape / sexual assault victims in 2022 being 32,146, erring on the low side of the data contained in the above reports, even if 2% of reports in Australia are false, that would mean at least 642 people were falsely accused in 2022; and if it is as high as 5%, then at least 1,607 people were falsely accused.

Of course, the figure of 32,146 victims of sexual assault is awful and we need to do more as a society in relation to this, but so is 642 to 1,607 figure of falsely accused.

Why do People Make False Sexual Assault Claims?

In many cases of false sexual assault allegations, an individual deliberately fabricates being a victim of rape or sexual assault. They not only claim to have been assaulted but may also take the step of reporting these false accusations to the police.

Such reports can lead to the wrongful criminal prosecution of someone innocent in cases involving alleged sexual assault or rape.

While it may seem inconceivable, there are numerous reasons why someone might make a false report of rape or sexual assault.

The CPS Report from the UK outlines the following reasons why people make false allegations of rape or sexual assault, emphasising the complexity and the varied motivations behind such actions.

Here are the key reasons identified:

  1. Misguided Actions Under Stress or Confusion – Some individuals might make false allegations as a result of confusion, stress, or misunderstanding during a highly emotional situation. In some cases, what begins as a true allegation may be later retracted under pressure, or out of fear, leading to a complex situation where the retraction itself may be false.
  2. Mental Health Issues – The report notes that a number of cases involve individuals with mental health difficulties, who might not fully grasp the consequences of their actions or who might misinterpret events.
  3. Manipulation or Coercion – Some false allegations may be made because the individual is manipulated or coerced by others. This can occur in contentious personal relationships or as a result of pressure from peers or family members.
  4. Retaliation or Attention Seeking – In some scenarios, false claims are driven by motives such as revenge against a perceived wrong, the desire to gain attention, or as a means of obtaining sympathy or support from others.
  5. Complex Personal Dynamics – False allegations can also emerge from complex and troubled personal relationships, where accusations are used as a form of control or to alter the dynamics of the relationship.

The report underscores the serious implications of false allegations, not only for the accused but also for the accuser, particularly when the legal system becomes involved.

It stresses the importance of careful investigation and consideration of the context in which allegations are made, to ensure that justice is served for all parties involved.

Wrongly Accused of Paedophilia

Paedophilia is most likely the absolute worst thing that anyone can do in our society, and the mere accusation of paedophilia can have catastrophic effects on a person’s life, especially if they are wrongfully accused.

Such allegations can irreversibly tarnish a person’s reputation, disrupt their professional and personal relationships, and lead to profound psychological distress.

There are profound and often devastating impacts on people who have been wrongfully accused of paedophilia, including:

  1. Emotional and Psychological Impact – The mental health impact of being wrongfully accused can include depression, anxiety, and post-traumatic stress disorder (PTSD). The stress and trauma of undergoing a public accusation and the associated legal processes can have lasting psychological effects.
  2. Impact on Family – Families of the accused can experience significant stress and upheaval. Relationships with spouses and children can suffer, leading to potential breakdowns in family structures. Children of the accused may face bullying or isolation from their peers.
  3. Isolation – To avoid confrontation and further stigma, individuals may isolate themselves, leading to loneliness and exacerbating mental health issues. This withdrawal can impair their ability to seek or receive support.
  4. Legal and Financial Strain – The legal costs associated with defending against false accusations can be astronomical, potentially leading to financial ruin. Legal battles may drag on for years, compounding financial stress with the emotional toll of ongoing litigation.
  5. Loss of Trust in Legal Systems – Experiencing a wrongful accusation can erode an individual’s trust in the legal and justice systems. This disillusionment can extend to broader societal trust, impacting their willingness to engage with and contribute to community and social services.
  6. Physical Health Decline – The intense stress and emotional turmoil can also lead to physical health problems, including high blood pressure, heart disease, and other stress-related illnesses.
  7. Professional Repercussions – The professional damage can be immense. Individuals may lose their jobs, face barriers to future employment, or be forced out of their careers, especially if they work in fields involving children, such as teaching or paediatric care. Rebuilding professional credibility can be an uphill or impossible task.
  8. Social Stigmatisation – Even after being cleared of the charges, the stigma associated with the accusation of paedophilia can persist. The accused might be ostracised by their community, lose friendships, and find their social relationships severely damaged. This stigmatisation can extend to their family members, affecting their social lives and mental health as well.
  9. Suicidal Thoughts – In some cases, the overwhelming stress and public shame can lead individuals to contemplate or attempt suicide.

In Rodgers & Anor v Gooding [2023] QDC 115, the plaintiffs, Mianka Rodgers and Michael Usher, were awarded damages for defamation against the defendant, Zoe Anne Gooding.

The case centred on defamatory posts made by Zoe Anne Gooding on a community Facebook page, where she falsely accused Rodgers and Usher of being paedophiles.

The court found these allegations to be baseless and defamatory, leading to the damages awarded for the harm caused to the plaintiffs’ reputations and ordered the following damages:

  • Mianka Rodgers was awarded $100,000 in compensatory damages and an additional $25,000 in aggravated damages.
  • Michael Usher was awarded $100,000 in compensatory damages and $40,000 in aggravated damages.
  • Interest on the total damages was fixed at $14,179.32.
  • The defendant was also ordered to pay the costs of the plaintiffs, subject to agreement or taxation if no agreement was reached.

Injunctions – Defamation Cases for False Sexual Allegations

In defamation lawsuits, courts often issue injunctions to stop further defamation or further damage to a person’s reputation. These injunctions are particularly common when the defamatory statements involve sexual content, such as accusations of rape, sexual assault or harassment, and paedophilia.

Stonegate Legal was involved in the case of JDT v PDL (No 2) [2022] QDC 147 where we (and Nelson, A.M of counsel) successfully obtained the following order:

Any copy of the judgments of the Court upon this interlocutory application are to be published on the Court’s website in a format which anonymises any reference to the parties and redacts any reference to their addresses, school, place of employment and any other particular likely to lead to the identification of each of them.

This order was to protect the plaintiff (our client) in defamation proceedings having his somewhat distinctive name appear in Google search results when someone Googled him.  Falsely accused of very serious sexual crimes, it was important to him that no further damage was to be done by the instigation of defamation proceedings.

His Honour Long SC, DCJ discusses the anonymisation under section 10 of the Criminal Law (Sexual Offences) Act 1978 from [11] to [30], weighing up the fundamental function of the court in conducting proceedings openly in public, and the interests of justice in this particular case.  Ultimately deciding at [30]:

Accordingly this issue will require further consideration in the context of the final determination of the substantive proceedings, but having regard to the undoubted power of the Court to control its own processes and what at this stage must be regarded as the unresolved position, it is desirable in the interests of justice, that these interlocutory judgments be published on the Court’s website in a format which anonymises any reference to the parties and redacts any reference to their addresses, school, place of employment and any other particular likely to lead to the identification of each of them.

Another pivotal case is Australian Broadcasting Corporation v O’Neill [2006] HCA 46, where the Australian Broadcasting Corporation (ABC) was initially restrained by an interlocutory injunction from broadcasting a documentary that implicated James Ryan O’Neill in several notorious unsolved crimes, including the disappearance of the Beaumont children.

Mr O’Neill, who was already a convicted murderer, was alleged in the documentary to have been involved in other serious crimes.

The injunction was initially granted on the basis that it was not in the public interest for the media to allege that a person has committed crimes of which they have not been convicted, reflecting concerns over “trial by media.” The court acknowledged the principle that such allegations should generally only be made public through formal charges and convictions.

Ultimately, the High Court allowed the appeal from ABC, setting aside the order of the Full Court of the Supreme Court of Tasmania. This decision effectively removed the interlocutory injunction, allowing the broadcast of the documentary. The High Court’s ruling emphasised the balance between protecting individuals from unproven and potentially damaging allegations and the importance of free speech and public interest in receiving information.

The Current Injunction Landscape in Australia

Historically, Australian courts have exercised considerable caution in issuing injunctions in defamation cases to balance freedom of expression with protection against defamation.

This conservative approach is primarily because defamation concerns false and derogatory statements that can irreparably damage reputations if not quickly restrained, yet such action can also impede free speech.

Australian courts apply a set of principles outlined in the above case of ABC v O’Neill, where before granting an interlocutory injunction, the court must see that:

  1. There is a serious question to be tried with a sufficient likelihood of success at trial.
  2. The plaintiff is likely to suffer injury for which damages would not be an adequate remedy.
  3. The balance of convenience favours granting the injunction.

In defamation, the application of these principles becomes particularly nuanced. The courts must consider the public interest in free speech, the nature of the defamation, and the likelihood that the publication could be proven true as defences by the defendant.

In essence, while the Australian legal framework allows for interlocutory injunctions in defamation cases, their issuance is rare and typically reserved for cases where the defamatory statements are clearly unjustifiable and the harm they could cause is significant and irreparable. This careful approach aims to ensure that the courts do not unduly stifle freedom of expression while protecting individuals from serious reputational harm.

What is a Defamation Case?

Defamation in Australia involves four essential elements:

  1. Publication – The defamatory content must be published to a third party, meaning someone other than the person defamed.
  2. Identification – The publication must identify the plaintiff, either explicitly or implicitly.
  3. Defamatory Nature – The content must be defamatory, suggesting to a reasonable person that the plaintiff is subjected to hatred, contempt, ridicule, or that their reputation is lowered.
  4. Serious Harm – The publication must cause, or be likely to cause, serious harm to the plaintiff’s reputation.

Obviously, false sexual allegations (rape, sexual assault, or paedophilia) ticks boxes 3 and 4 above.

Read our article here on Defamation in Queensland.

Sending a Concerns Notice?

The first step in defamation proceeding for false sexual allegations is to send a concerns notice.

A concerns notice is a formal document sent to the publisher of alleged defamatory content. It serves as a preliminary step before any legal action for defamation can proceed, detailing the defamatory imputations and the serious harm caused. The notice must:

  1. Be in writing.
  2. Specify the location of the alleged defamatory content.
  3. Detail the defamatory imputations believed to be made by the content.
  4. Outline the serious harm caused by the publication.
  5. Be accompanied by a copy of the publication, if practicable.

If they do not respond, or do not offer an acceptable offer to make amends, then you can commence legal action.

Very detailed article here – Sending a Concerns Notice in Defamation Claims.

Time Limits for Defamation

In Australia, the time limit for bringing a defamation claim for false sexual allegations is generally set at one year from the date of publication of the defamatory material. This is outlined under section 10AA of the Limitation Act 1974 (QLD) and similar provisions in other states, which set the standard limitation period for defamation actions, it says:

An action on a cause of action for defamation must not be brought after the end of a limitation period of 1 year running from the date of the publication of the matter complained of.

The limitation period for initiating defamation proceedings is one year from the date on which the defamatory content was first published.  In some cases, the court has the discretion to extend this period if it is deemed just and reasonable.  Section 32A of the Limitation Act 1974 (QLD) says:

(1) A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
(2) The court may extend the limitation period to a period of up to 3 years running from the date of the alleged publication of the matter if the plaintiff satisfies the court that it is just and reasonable to allow an action to proceed.

The countdown for the limitation period starts from the date the content is published, not from when the claimant became aware of it.

Qualified Privilege Defence for False Sexual Allegations

In the case of Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258, the Queensland Court of Appeal addressed several issues, including the defence of qualified privilege in the context of defamation. This defence was pivotal to the appeal, which contested the trial judge’s findings related to statements allegedly made by Ms. Lamb to a police officer.

Overview of the Qualified Privilege Defence

Qualified privilege is a defence in defamation law that protects individuals from liability for defamation when they make statements in certain protected circumstances, without malice, and to someone with a corresponding interest or duty to receive the information.

The defence acknowledges that there are situations where the communicator has a legal, moral, or social duty to make a statement, and the recipient has a corresponding interest in receiving it – like making a complaint to the police for example.

Application in the Karageozis Case

The appellate court scrutinised whether Ms. Lamb’s communication to the police was made on an occasion of qualified privilege. The trial judge had rejected the defence, arguing that the police have no duty to receive reports of non-criminal, morally objectionable behaviour.

The appellate court challenged this view, suggesting that the trial judge took too narrow a view of what constitutes a duty or interest under the doctrine of qualified privilege.

Conclusion of the Court

The appellate court found that Ms. Lamb’s act of reporting to the police could indeed fall under the protection of qualified privilege, considering the broader implications of her report.

This case highlights the complexities of applying the qualified privilege defence in defamation law, especially in contexts where the boundaries of duty and interest are not clear-cut. It underscores the courts’ willingness to interpret the defence broadly, in line with the principles of freedom of expression and the necessity of open communication on matters of public concern.

Qualified privilege is likely the main defence in a defamation case for false sexual allegations, as under certain circumstances the reporting to the police may be found to be reasonable, albeit ultimately false.

Read our detailed article on – Defences to Defamation Claims.

Malicious Prosecution for False Sexual Allegations

The High Court said in Beckett v NSW (2013) 248 CLR 432 at [4] as follows in relation to malicious prosecution:

…the plaintiff must prove four things: (1) the prosecution was initiated by the defendant; (2) the prosecution terminated favourably to the plaintiff; (3) the defendant acted with malice in bringing or maintaining the prosecution; and (4) the prosecution was brought or maintained without reasonable and probable cause.

Therefore, to establish a claim for malicious prosecution, a plaintiff must demonstrate:

  1. That the defendant initiated or continued the prosecution.
  2. The prosecution terminated in favour of the plaintiff.
  3. The defendant acted maliciously in initiating or continuing the prosecution.
  4. The defendant lacked reasonable and probable cause to prosecute.

A crucial element of the tort of malicious prosecution is that the prosecution must have terminated in a manner that does not suggest the guilt of the accused. In Beckett’s case, the proceedings were terminated through a nolle prosequi, a legal term indicating that the prosecutor decides to discontinue proceedings.

The tort of malicious prosecution provides a necessary remedy for individuals wrongfully prosecuted, helping to ensure that the justice system remains just and equitable.  It serves as a check on abuses of the legal process and helps to maintain public confidence in the administration of justice.

It can be run alongside, or in the alternative to, a claim in defamation.

False Sexual Allegations & Defamation Cases

In recent years, a series of high-profile legal cases have publicly tested the boundaries and implications of defamation law in Australia.

Each case not only highlights the essential elements required to establish defamation but also showcases the critical role of the judiciary in balancing the right to free speech against the need to protect individual reputations from unjust harm.

From actors and politicians to medical professionals, the individuals involved have turned to the courts to challenge the damaging assertions made against them, leading to significant legal precedents and substantial awards in damages.

This section of the article examines notable defamation cases, detailing the accusations, legal arguments, outcomes, and broader legal implications, illustrating the profound impact such cases can have on personal and professional lives.

Rush v Nationwide News Pty Ltd

In the case of Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496, Mr Geoffrey Rush, an actor, was accused of false sexual allegations in a series of articles in The Daily Telegraph of behaving inappropriately during the production of the Sydney Theatre Company’s performance of King Lear.

Rush stated that the articles contained several defamatory imputations, which included that:

He had engaged in scandalously inappropriate behaviour in the theatre; he had engaged in inappropriate behaviour of a sexual nature in the theatre; he had committed sexual assault in the theatre; he was a pervert; and he had behaved as a sexual predator and had inappropriately touched an actor while working on the STC’s production of King Lear.

He sued Nationwide (the Daily Telegraph publisher) and the main author of the stories, Mr Jonathon Moran.

The court found that the material was indeed defamatory and Nationwide and Moran were ordered to pay damages, including aggravated damages, to Rush in the amount of $850,000.00 at [926], the Court ordering:

Verdict and judgment should be entered for the applicant, Mr Rush.

Nationwide and Mr Moran should be ordered to pay general damages, including aggravated damages, to Mr Rush assessed in the sum of $850,000.

The matter will be listed for a case management hearing on 10 May 2019 at 9.30 am for the purposes of making orders in relation to the filing of further evidence and submissions in respect of the assessment of damages for economic loss and further submissions in relation to injunctive relief, costs and interest.

Lehrmann v Network Ten Pty Limited

In Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, Bruce Lehrmann sued Network Ten Pty Limited and Lisa Wilkinson for defamation concerning an episode of Network Ten’s “The Project” program.

The broadcast and its online publications suggested Lehrmann had raped Brittany Higgins in Parliament House in 2019. This allegation became a significant public and media focus.

Key Legal Points:

  1. Defamation Claims – Lehrmann argued the program defamed him by effectively identifying him as the assailant in the alleged rape of Higgins, despite not being named explicitly.
  2. Identification – The court examined whether the broadcast led viewers who knew Lehrmann to identify him as the accused. This included examining the understanding of those with inside knowledge of Lehrmann and Higgins.
  3. Defences – Network Ten and Wilkinson defended their case primarily on the grounds of truth, among other defences like qualified privilege.
  4. Judgment – The court found that the defence of truth was established. It concluded that Lehrmann did rape Higgins, which substantially aligned with the defamatory imputations alleged.
  5. Outcome – The court dismissed Lehrmann’s claims and ordered that judgment be entered for the respondents. The parties were directed to file submissions regarding the costs.

In this decision, Lee J said at [620] and [621]:

Mr Lehrmann raped Ms Higgins … I hasten to stress; this is a finding on the balance of probabilities. This finding should not be misconstrued or mischaracterised as a finding that I can exclude all reasonable hypotheses consistent with innocence. As I have explained, there is a substantive difference between the criminal standard of proof and the civil standard of proof and, as the tribunal of fact, I have only to be reasonably satisfied that Mr Lehrmann has acted as I have found, and I am not obliged to reach that degree of certainty necessary to support conviction upon a criminal charge.

This case underscores the complexities involved in defamation law, especially around issues of public interest and the identification of individuals in media publications.

The ruling also highlights the rigorous standards applied in verifying the truth of defamatory statements and the implications for both the accuser and the accused in high-profile cases.

Colagrande v Kim

In the case of Colagrande v Kim [2022] FCA 409, a cosmetic surgeon, Dr. Cesidio Colagrande, sued Dr. Min Sik “Mitchell” Kim and his wife Anna Min for damages in the Federal Court over a defamatory review relating to false sexual allegations.

The review, posted anonymously on the site “Rate MD,” alleged that Dr Colagrande should not be practising due to a previous conviction for sexual assault, despite the conviction being quashed on appeal.

The review implied serious misconduct by Dr. Colagrande, causing significant harm to his reputation as a medical practitioner.

The court found the review to be defamatory and ordered the rival cosmetic surgeon responsible for the review to pay approximately $450,000 in damages plus interest. The Court saying at [70]:

Given all of the circumstances referred to above I am satisfied that a substantial award of damages is required (including aggravated damages) on account of Dr Colagrande’s hurt feelings, damage to his reputation, the need for vindication of his reputation, and the circumstances of aggravation. I award $420,000 to Dr Colagrande on account of his non-economic loss.

In relation to the injunctions sought in this matter, Jagot J said at [73] & [74]:

I consider that the circumstances support an inference that there is a real risk of the respondents publishing the false review or matter to the same effect unless restrained. In particular:

(1) in posting the false review anonymously, the respondents ensured that their identities were not disclosed;

(2) the respondents posted the false review despite never having any direct interaction with Dr Colagrande and for the most base of motives, which was to attempt to destroy a commercial competitor of the first respondent once and for all;

(3) the evidence that the respondents were responsible for the false review and its ultimate removal from the RateMDs website is overwhelming, but they have never acknowledged their responsibility for these events, let alone expressed any remorse or otherwise given any indication that they accept the seriousness of the wrong they have done to Dr Colagrande; and

(4) the evidence is that the first respondent continues to practice as a cosmetic surgeon on the Gold Coast and Dr Colagrande continues to practice out of his clinic on the Gold Coast, albeit that he now focuses on health and wellbeing and not cosmetic surgery.

… Permanent injunctions will be granted restraining the respondents from publishing the false review or any matter to the same effect.

Burston v Hanson

In the case of Burston v Hanson [2022] FCA 1235, a defamation proceeding was brought by former Senator Brian Burston against Senator Pauline Hanson.

Hanson published false sexual allegations on a public Facebook post, in which she claimed that Burston sexually harassed staff in his office, harassed a female staffer in his office, and brought the Senate into disrepute by his behaviour towards staff.

The court found that Hanson’s statements, including claims of sexual abuse and assault, were false and defamatory towards Burston. As a result, Hanson was ordered to pay $250,000 in damages to Burston for the harm caused to his reputation. Bromwich J deciding at [263]:

I find that both the 4th imputation and the 6th imputation were seriously damaging to Mr Burston’s reputation, being broadcast on a nationally broadcast television program watched by over 290,000 people at that time. They were both false. Both imputations were in the same program. I consider that a substantial award of damages is necessary to telegraph to the public that both of those imputations were false and without justification. I therefore award Mr Burston damages in the sum of $250,000.

In this case there are some interesting points relating to sexual allegations and defamation:

  1. Defamation and Public Figures – The interaction between defamation law and public figures, especially politicians, featured prominently, with considerations on how public discourse about their conduct is handled legally.
  2. Impact of Public Identification – The case discussed whether the alleged defamatory statements identified the plaintiff, particularly in scenarios where the plaintiff might have been identifiable to the public or a specific community before the statements were made.
  3. Imputations of Sexual Misconduct – The case involved allegations that the applicant sexually harassed staff in his office, with specific imputations including sexual harassment and sexual abuse of a female staffer.
  4. Justification of Substantial Truth – The defence argued that the imputations about sexual harassment were substantially true, impacting the applicability of defamation claims.
  5. Plea of Qualified Privilege – The defence also relied on qualified privilege, claiming that the statements were made in a context where the speaker had an interest or duty to make them to an audience with a corresponding interest to receive them.

These points highlight the complex interplay between allegations of serious misconduct, the legal defences available in defamation cases, and the broader implications for public figures and their reputations.

Fleming v Advertiser-News Weekend Publishing Co P/L & Anor

In Fleming v Advertiser-News Weekend Publishing Co P/L & Anor (No 2) [2016] SASC 26 Father John Fleming sued Advertiser-News Weekend Publishing Company Pty Ltd for defamation because of false sexual allegations. The publications included allegations that the plaintiff who was an Anglican priest, was alleged to have been involved sexually with two girls, one underage, and to have had a homosexual affair. These allegations formed the basis of the defamation claim.

The court ruled against Father Fleming, finding that the allegations made against him were substantially true.

The interesting elements of this case include:

  1. Contextual Imputations – The court considered whether the publications conveyed imputations that the plaintiff engaged in criminal sexual behaviour, including predatory sexual behaviour and immoral acts, which were deemed defamatory.
  2. Judicial Considerations on Truth – The court analysed the truth of the contextual imputations and found that, on balance, the allegations of sexual misconduct were substantially true based on the evidence presented.
  3. Publication and Repetition – The defamatory allegations were published multiple times across both a print newspaper and an online platform, amplifying the potential reputational damage.
  4. Substantial Truth Defence – The defendants successfully argued that the imputations of the plaintiff engaging in criminal sexual behaviour while an Anglican priest were substantially true, thus providing a defence to the defamation claims.
  5. Damages and Aggravated Damages – The case discussed potential damages for defamation, including personal injury (mental health impact) and economic loss due to the plaintiff’s employment termination. The court also considered whether aggravated damages were appropriate based on the nature of the allegations and the manner of publication.

This case highlights the complexities of defamation law, particularly when the alleged defamation involves serious accusations such as sexual misconduct. It also underscores the importance of the defence of truth in defamation proceedings.

Dye v Commonwealth Securities Limited

In Dye v Commonwealth Securities Limited [2012] FCA 242, the court addressed various legal issues related to defamation because of false sexual allegations. Vivienne Louise Dye brought forward allegations of sexual harassment and discrimination against Commonwealth Securities Limited, Ralph Norris, and Michael Blomfield.

The court discussed matters such as qualified privilege, reply to attack, human rights, jurisdiction of the Federal Court, and vicarious liability. Despite the allegations made by Dye, the court found that there were no defamatory imputations.

In this case there are several interesting points which emerge relating to allegations of sexual harassment and defamation:

  1. Defamation Claims – Alongside the sexual harassment claims, Ms. Dye also accused the respondents of defamation. This arose from the public and media statements made by the bank in response to her allegations, which she claimed damaged her reputation.
  2. Qualified Privilege and Defamation Defence – The case explored the defence of qualified privilege in defamation, particularly how it applies when an employer publicly responds to allegations of misconduct by an employee.
  3. Jurisdictional Challenges – The case examined the extraterritorial application of the Sex Discrimination Act 1984, as some of the alleged conduct occurred in New Zealand, raising questions about the Federal Court’s jurisdiction over these incidents.
  4. Vicarious Liability – The court considered the extent of an employer’s vicarious liability for acts of sexual harassment committed by employees, emphasising the legal responsibilities of employers in preventing and addressing such conduct.

Ultimately, the court found that Ms. Dye’s false sexual allegations lacked factual foundation and legal substance, leading to the dismissal of her claims, including those for sexual harassment and defamation.

This case underscores the complexities and challenges in handling allegations of sexual misconduct and defamation within a legal and corporate framework, particularly when media attention is involved.

Marsden v Amalgamated Television Services Pty Ltd

In Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 510, the plaintiff, John Marsden, sued the defendant for false sexual allegations, the license holder of Channel 7 News, for the publication of alleged defamatory imputations that were made against him in two television programs. The imputations were as follows at [3]:

The plaintiff has had sexual intercourse with boys who were under the age of 18 knowing them to be under the age of 18; or
The plaintiff has had sexual intercourse with boys who were under the age of 18.
The plaintiff has had sexual intercourse with a male prostitute who was under the age of 17.
The plaintiff has had sexual intercourse with a 15-year-old boy who was then under the influence of drugs which had been given to him by the plaintiff; or
The plaintiff has had sexual intercourse with a 15-year-old boy”.

The jury found that the broadcasts contained certain defamatory imputations, including that Marsden had sexual intercourse with boys under the age of 18 and that he was responsible for causing psychiatric damage to Leslie Murphy, which led to the rape and murder of Anita Cobby.

The trial primarily focused on whether the publications were defamatory, the truth of the imputations (justification), and whether the broadcast was covered by qualified privilege. Marsden sought damages for defamation to compensate for the damage to his reputation.

Channel 7 argued that the allegations were true (justification) and that the publications were made on occasions that warranted qualified privilege.

The court found that these false sexual allegations were indeed defamatory and awarded the plaintiff $525,000 in damages and legal costs.

While the detailed judgment is not summarised here, the significant public interest in the case, as well as the jury’s findings that some of the imputations were defamatory, indicate a complex interplay between media freedom and individual reputation rights.

This case stands out due to its examination of serious allegations against a public figure and the implications of such accusations on one’s reputation, set against the backdrop of media responsibilities and the boundaries of journalistic freedom.

Grattan v Porter

In the case of Grattan v Porter [2016] QDC 202, Mr. Grattan sued Ms. Porter for defamation in relation to false sexual allegations after she insinuated to a school that he was a paedophile.

Mr. Grattan and his wife were once close friends with Ms. Porter and her husband, but their relationship deteriorated. Subsequently, Ms. Porter acted on her suspicions and informed a school that Mr. Grattan had been inappropriately involved with children, despite her previous similar allegations found to be baseless.

Mr. Grattan sued Ms. Porter after discovering she was the one who made the call to the school. He claimed that her statements to the school were defamatory as they imputed that he was a paedophile.

The court agreed with Mr. Grattan, finding that the imputation was indeed defamatory. It was noted that in today’s context, suggesting inappropriate dealings with children implies sexual misconduct. The court dismissed Ms. Porter’s defences, including justification, qualified privilege, and a defence under the Child Protection Act, primarily due to her actions being motivated by spite and without a reasonable or factual basis.

The court awarded Mr. Grattan $150,000 in damages, which included aggravated damages at [109] where Robertson J says:

Nevertheless, this was a serious defamation, and doing the best I can, I assess damages at $150,000. I agree with Mr Nelson that this is a modest sum, given the gravity of the defamation. This includes a component for aggravated damages of $30,000.

The judgment highlighted the seriousness of falsely labelling someone as a paedophile, considering it as one of the worst things that can be said about a person. Referencing Bertwistle v Conquest [2015] QDC 133, Robertson J said:

To falsely call someone a paedophile has been correctly recognised as being one of the worst possible things that might be said about a person.

This case underscores the significant impact defamatory statements can have on a person’s reputation, especially when involving serious accusations such as being labelled a paedophile.

Bertwistle v Conquest

Bertwistle v Conquest [2015] QDC 133 is a defamation case relating to false sexual allegations in which the plaintiff, Daryl Ross Bertwistle, sought legal redress against the defendant, Nancy Ann Conquest, for sending defamatory text messages. These messages, sent to Birtwistle’s sister, falsely accused him of engaging in consensual and non-consensual sexual acts with his sisters.

The case was heard in the District Court of Queensland, where Birtwistle filed for a default judgment due to Conquest’s failure to respond to the legal proceedings adequately. She neither filed a defence nor showed up in court. Consequently, each allegation in the amended statement of claim was deemed admitted under the rule governing default judgments.

The court granted Bertwistle the relief he sought, Samios DCJ making the following orders:

That, until further order, the defendant is restrained from making and/or repeating in any way whatsoever statements to the effect of those pleaded in paragraphs 2 and 8 of the Amended Statement of Claim.

That the defendant pay compensatory damages to the plaintiff for defamation in the amount of $100,000.00.

That the defendant pay interest to the plaintiff pursuant to s. 58 of the Civil Proceedings Act 2011 (Qld) in the amount of $4,202.74 on the damages awarded.

That the defendant pay the plaintiff’s costs of and incidental to the proceedings on an indemnity basis.

The court emphasised the severe nature of the allegations, particularly labelling someone as a paedophile, which it described as one of the worst accusations that could be made if untrue. Such allegations have a profound impact on the accused’s social and family relationships, significantly damaging their reputation and personal relations.

The judge highlighted that these allegations, especially in the current social climate, are grave and taken very seriously. The awarded damages were meant to serve as consolation for personal distress, reparation for harm to Bertwistle’s reputation, and to vindicate his reputation publicly.

This case underlines the judiciary’s stance on the seriousness of false accusations of sexual misconduct, particularly involving children, and reflects the substantial harm they can cause to an individual’s personal and social standing.

False Sexual Allegations & Defamation – Key Takeaways

This article emphasises the delicate balance in defamation cases involving false sexual allegations, such as those related to sexual assault and paedophilia. It explores significant legal battles where defamation action was taken in response to such allegations, highlighting the nuanced challenges and consequences for all parties involved.

This article outlines the profound effects of false sexual assault allegations, which can include severe psychological trauma, reputational damage, and substantial legal costs, among other consequences. These impacts can persist long after the resolution of a case, affecting every aspect of the accused’s life, including their personal and professional relationships.

These cases can influence both the evolving legal standards and public perception of sexual misconduct and defamation, and stresses the need for rigorous standards of proof in defamation cases to mitigate the potential for substantial legal repercussions.

Overall, there should be a careful re-evaluation of how society addresses and adjudicates claims of sexual misconduct, particularly in the context of defamation, to ensure justice is served for all parties involved.

FAQs on Defamation and False Sexual Allegations

Explore our FAQ section for insights into the complex interplay between defamation law and false sexual assault allegations in Australia.

Here, we address common questions about the legal ramifications, protections, and the impact of such cases on individuals and society.

What is defamation in the context of false sexual allegations?

Defamation in this context refers to the act of making false statements about someone that can harm their reputation, particularly through public media. This becomes significant in cases where someone is wrongly accused of sexual assault, as such allegations can lead to serious personal and professional repercussions.

How common are false sexual allegations?

False sexual allegations are relatively rare but do occur. Studies cited in the article suggest that the percentage of false claims can vary between 2% and 10%, with the exact prevalence difficult to pinpoint due to inconsistencies in how data is collected and interpreted.

What legal protections exist for individuals falsely accused of sexual assault?

Individuals falsely accused can pursue a defamation case if the false allegations are made publicly and damage their reputation. The legal system provides mechanisms to seek redress through civil lawsuits for defamation, which can lead to compensation for damages incurred.

What are the potential consequences of being falsely accused of sexual assault?

The consequences include reputational damage, emotional and psychological trauma, financial strain due to legal costs, employment challenges, and social isolation. Even if acquitted, the stigma can have lasting effects on personal and professional relationships.

How does the law balance free speech with protection against defamation?

Australian courts exercise caution when issuing injunctions in defamation cases to ensure a balance between protecting freedom of expression and preventing harm from defamatory statements. Courts require a strong likelihood that the plaintiff will succeed at trial and that damages would not be an adequate remedy alone.

What is qualified privilege in defamation law?

Qualified privilege is a defence in defamation law that protects individuals from liability if they make statements in certain protected circumstances without malice, and where there’s a duty to communicate this information to someone who has a corresponding interest in receiving it.

Can someone be compensated for being wrongfully accused of sexual assault?

Yes, if a person is wrongfully accused and the accusation is made publicly in a defamatory manner, they can seek compensation through a defamation lawsuit. Compensation can cover damages for emotional distress, loss of reputation, and financial losses incurred.

What standards of proof are required in defamation cases involving false sexual allegations?

The plaintiff must prove that the defendant published false statements that damaged their reputation and did so without adequate grounds (lack of reasonable and probable cause) and with malice.

What is the role of injunctions in defamation cases?

Injunctions can be used to prevent further defamatory publications from occurring. Courts may issue temporary injunctions while the case is being decided to prevent ongoing damage to someone’s reputation.

What should one do if they believe they have been defamed in the context of false sexual allegations?

It is advisable to consult a solicitor specialising in defamation law. The first step often involves sending a concerns notice to the publisher of the defamatory content, outlining the allegations and the harm caused, and seeking a retraction or apology.

What is a concerns notice?

A concerns notice is a formal document sent to the person or entity who published the defamatory content, stating the nature of the defamation and the damages sought. This notice is a prerequisite for filing a defamation claim in court.

How long does someone have to bring a defamation claim?

In Australia, the limitation period for bringing a defamation claim is generally one year from the date of the publication of the defamatory material. However, courts may extend this period under certain circumstances.

Can public figures seek protection from false sexual allegations?

Public figures, like any individual, can seek protection through defamation laws if they are falsely accused of sexual assault. However, they must overcome the additional burden of proving malice, as their activities are subject to a higher level of public scrutiny.

What impact do false sexual allegations have on public perception?

False sexual allegations can undermine the credibility of genuine cases, causing public scepticism and potentially deterring victims from coming forward. They can also lead to a media frenzy that may unjustly ruin the lives and careers of those wrongfully accused.

How are defamation cases resolved?

Defamation cases may be resolved through settlements where parties agree to compensation and a retraction, or they may go to trial where the court will determine whether defamation occurred, the damages owed, and any other legal remedies such as injunctions against further publication.

Disclaimer: The content on this website is intended only to provide a general summary of information of interest. It is not intended to be comprehensive nor does it constitute legal advice. We attempt to ensure that the content is current but we do not guarantee its accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this website. Your use of this website or the receipt of any information on this website is not intended to create nor does it create a solicitor-client relationship.


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