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Could New Zealand’s Tough Media Laws Silence Our #metoo Moment?

Tess McClure

New Zealand’s defamation laws mean it’s rare to see allegations of sexual misconduct in the press. Is our legal situation enough to silence a movement of sexual assault reporting here?

Image: Ben Thomson

After Weinstein the flood began. Internationally, man after prominent man seemed to topple. The reports spanned business, politics, journalism, comedy, the arts, Hollywood. Comedian Louis CK, actor Kevin Spacey, director Morgan Spurlock, reporter Ryan Lizza, chef Mario Batali, TV anchors Matt Lauer and Charlie Rose, editor Leon Wieseltier. The sheer volume of allegations—and the resignations, firings, or trips to rehab they generated—mean it’s not uncommon now to see headlines like 100 High-Profile Men Accused of Sexual Misconduct.

The movement came first and foremost as a result of victims speaking out—but #metoo’s transition from social media dialogue to global phenomenon was also thanks to large-scale investigations published in the press.

Here in New Zealand media, however, there’s been a dearth of equivalent stories. Beyond commentary, and remarks on overseas cases, the #metoo movement hasn't resulted in local Weinstein-esque exposes. Strict laws covering reputational damage mean reporting on allegations of sexual assault or rape outside the courts presents a huge risk to media outlets. While the social and cultural environment surrounding allegations of sexual assault has changed enormously, reporting on those allegations in NZ hasn’t got easier.

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“It's enough to terrify me off most tips in this area,” says journalist Matt Nippert.

Nippert is one of the New Zealand Herald’s investigative team, and won national awards for reporter of the year and best investigation in 2017. In the last year alone, he’s reported extensively on fraud, abuse in state care, financial crime, tax havens and money laundering. Last week, he published the latest instalment in an ongoing investigation into the unusual circumstances surrounding the citizenship of famously-fond-of-lawsuits billionaire Peter Thiel. Despite years of reporting on the powerful, litigious or deep-pocketed, on the subject of extra-judicial sexual assault allegations he is particularly wary. “Accusing people of crimes without a verdict is a really high bar to hurdle, even in fraud complaints where documentation is way easier to come by,” he says via Twitter.

“The chief problem is if you get challenged in court for defamation you have to prove your case, effectively becoming a prosecutor,” Nippert says. “Police and Crown Law have teams of people working on these cases, for months. That effort is beyond the abilities and resources of most journalists.”

For the non-lawyers among us, “defamation” occurs when an individual, or media outlet, publishes information which damages someone’s reputation. The person with the damaged reputation can make a claim of damages—sometimes astonishing sums of money. In 2010, for example, a fishery claimed $30 million in damages [the case was eventually settled out of court]*. Defamation cases can be won on the finer details: one man won a case against former Prime Minister Helen Clark for calling him a murderer, when he had in fact been convicted of manslaughter.

In New Zealand, the primary defence against defamation is truth. If you’re a journalist who’s reporting on sexual assault allegations, it’s up to you to prove in court the truthfulness of every piece of information they’ve published—and not up to the accuser to prove it’s wrong. That standard applies to both new allegations, and repeating what’s been said by others—even mentioning or linking to reports by other outlets.

In the United States, where much of the ‘Me Too’ reporting on sexual misconduct has occurred, the situation is very different. The First Amendment provides a fierce protection of free speech for journalists and citizens, and defamation cases are much more difficult to get over the line. If you’re a public figure, winning a suit generally requires proving the media outlet in question knew either that the information was wholly false or that it was published "with reckless disregard of whether it was false or not".

Considering a case like Harvey Weinstein brings those differences into sharp relief. As a public figure in the USA, it would be up to Weinstein to prove the allegations published against him were false, or published with reckless disregard. In New Zealand, it would be down to the media outlet to prove every last claim. The nature of sexual harassment cases is that they’re often covert and occur without witnesses. It’s not unusual for sexual assault victims to wait several years before making an allegation. They tend to leave little in the way of a paper trail.

Nippert notes that while difficult, it’s not impossible for New Zealand reporters to cover these kinds of cases. He points to the Louise Nicholas case, where reporter Phil Kitchin accused the upper echelons of NZ’s police hierarchy of rape—“but that was an extremely bold call by the editor and more than a year’s work.”

“Reporting this sort of material is brave in and of itself,” he goes on. “Criminal allegations are literally the most defamatory thing you can say about someone. Taking on this sort of story is a months-long commitment with the real risk you won’t be able to publish anything at the end of the process.”

For media organisations and reporters who are increasingly strapped for time and cash, that’s a big ask.

“I should also say I have enormous respect for complainants and reporters who try to bring these matters to light,” he says. “It's incredibly difficult work.”

“It sort of felt like, what are we here for? If you’re not willing to try and tackle stories of this nature and complexity, then what’s the point?”

Duncan Greive is sitting in a cavernous Auckland cafe a few minutes from the offices of The Spinoff, where he’s managing editor. The startup has become a significant player in New Zealand’s media landscape. But two years ago it was a much smaller beast: a one-time television blog that began stretching out into new sections of coverage at the end of 2015.

In early 2016, Greive watched as a few women on Facebook and Twitter began making allegations against Andrew Tidball, a high-profile music writer and mainstay of New Zealand’s music scene. “I was effectively watching that in real time,” he says: first the social media allegations, then a full denial published on Facebook by Tidball, and then some members of scene closing ranks online to affirm the blogger. Following that, silence.

A few months later, Greive and the site’s television editor Alex Casey published I Will Come Forward, a long-form investigation detailing sexual allegations from numerous women against Tidball.

I Will Come Forward must be among the first pieces of Me Too-styled journalism to occur in New Zealand. Despite occurring around two years before the current tide of reporting, the story has all the attributes that distinguish the current movement: the historic allegations of sexual assault and misconduct made initially on social media; the man a high-profile figure in the arts industry; both the allegations and desire for accountability occurring entirely independently of the criminal justice system.

Greive is drinking a long black, and selecting his words carefully. Looking back, he says the whole idea of women naming abusers online seemed like a shift. “It felt like a new thing,” he says. “Almost like a collective realisation that this was something you could do on these platforms.”

As a journalist, he says, “there’s a very different set of standards to work through—but the challenge was, what do you do with that, do you just sort of observe it?”

While defamation proceedings aren’t hugely common in New Zealand, their settlements can be enough to sink a smaller media organisation. In mid-2016, The Spinoff's entire annual revenue was $800,000—for scale, recent NZ defamation cases have included claims for thirty times that, and out-of-court settlements of around double.

Greive and Casey were reporting on the story in the months immediately following A Rape on Campus—the journalistic disaster of a sexual assault story published, and then retracted, by Rolling Stone. He says he never doubted the veracity of the women’s claims, but was aware of the level of scrutiny the story could be subject to.

The project required months of work, and intensive legal advice—in terms of contributions to the story, he ranks the women first, lawyers second, and journalists third. Also constantly present in their minds mind was the havoc it could wreak in the lives of the story’s sources if a defamation suit was brought.

“I think it’s really important that journalists… brief those sources on what the worst case scenario is. Which is that they be called to testify, that they could be named and sued and have damages awarded against them in a trial. We tried to mitigate all the risks, but they were very real risks.”

Weighing it, they published. “It sort of felt like, what are we here for? If you’re not willing to try and tackle stories of this nature and complexity, then what’s the point?”

But at other times, those risks can result in tough decisions for publishers, he says - even when you’re convinced of the story’s veracity. In early 2017, the Spinoff published When the Vice Squad Came Calling—detailing allegations by a number of trans sex workers about sexual misconduct and abuses of power by police officers. The story was stripped of names and identifying details of offenders, minimising legal risk.

“You have to make really hard decisions as a publisher. Because it’s not only you on the hook, it’s also your sources, what they might go through, and it’s really complicated. I think sometimes publishers have been a bit cowardly… but also you can’t underestimate the level of risk and complexity.”

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“There’s evidence that our defamation laws do chill some stories,” says Wellington media lawyer Steven Price. “It’s not clear that it applies to #metoo stories, but they do seem to be in the danger zone. They are very serious allegations, they often involve he-said/she-said scenarios, and the alleged harassers are often celebrities or other public figures, who have the money and inclination to sue to protect their reputations—sometimes even when they know the allegations are accurate.”

Price says defamation threats and lawsuits can be used to bully people and media organisations into silence. “Media organisations, especially small ones, are very sensitive to litigation risks. A defamation case might literally wipe them out,” he says.

And it’s not just publishers who have to tread carefully: if a suit is brought, the publisher, journalist, and even the sources of the story can all be dragged into court and sued. Everyone who repeats a defamatory allegation is liable for it, he says—even if they’re merely accurately quoting the person who first said it.

“It’s easy for plaintiffs to sue,” Price continues. “They don’t need to prove that the statement is false, or that they have suffered harm, or that the publisher was somehow at fault. Truth is a defence, but it can be hard to prove. Who will the jury believe? What’s worse, defamation cases are often drawn-out, technical, expensive and stressful.”

Having said all that, there are some good reasons these stories should be hard to publish, Price says. “We shouldn’t forget that, if the allegations are wrong, they can do a lot of harm to the accused person that may be impossible to undo,” he notes. “Defamation laws are there to try to head off that harm.”

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“I’m not qualified to know if our defamation law is good, bad or indifferent to these kinds of stories. I think we genuinely don’t have enough of that reporting to know. But you could argue that the lack of that reporting tells its own story,” Greive says.

We’re still waiting to see whether #metoo will spark a new wave of sexual assault reporting in New Zealand.

“What’s happened over the past six months, post the Harvey Weinstein story, is probably the most extraordinary period of journalism as a social movement that I can recall seeing. There might well have been others. But I’ve never seen anything like that, in terms of moving the social needle on what is acceptable, what gets explained away, or allowed to persist,” Greive says.

“I think and hope that stories which even five years ago would have seemed too difficult, people will now attempt,” he says. “My gut says it’s hard but it’s not impossible. And it should be hard. They’re really serious stories to write and report.”

Follow Tess on Twitter: @tessairini

*Correction: a previous verson of this story mentioned a defamation settlement brought by Simunovich Fisheries. It has been updated to reflect the case was brought against TVNZ and APN, not Fairfax.