On 13 November 2018, the Supreme Court will preside over a significant test case on libel law with far reaching implications for women’s rights. A panel of 5 male judges - Lord Kerr, Lord Wilson, Lord Sumption, Lord Hodge and Lord Briggs - will hear the case of Lachaux. Its outcome may well serve to shape the future reporting of violence against women in the media. Despite this, for reasons not furnished to us, their Lordships refused an application for permission to intervene on behalf Southall Black Sisters, the Nia Project and the Centre for Women’s Justice.
#Me Too and gender justice
At the heart of the case lies the question of the meaning of ‘serious harm’ under s1(1) of the Defamation Act 2013. It relates to news reports - published in The Independent, the i, and Evening Standard - which featured the serious allegations of domestic abuse made by Afsana Lachaux against her ex-husband Bruno Lachaux. At first instance in the High Court, Mr Justice Warby found - as a preliminary issue - that the published reports contained defamatory statements which had caused or were likely to cause serious harm to Bruno Lachaux’s reputation: a finding that was necessary under the 2013 Act in order for his libel claim to proceed. The newspapers’ appeal against that finding was unsuccessful in the Court of Appeal, but permission to appeal was granted to the Supreme Court.
This is not just about an issue of media law. A narrow and context-free approach to the meaning of ‘serious harm’ could serve to deny women vital access to the media to highlight the injustices perpetrated against them. It is a case which cannot be divorced from the #MeToo momentum and the reality of the countless women who have no option but to turn to the media to expose, challenge and seek acknowledgement for the acts of abuse and exploitation they have suffered at the hands of men who enjoy the benefit of the full armoury of defamation laws, non-disclosure agreements and emergency injunctions to silence them. In a world where we continue to see high levels of sexism, misogyny and systemic institutional failings – not least within the legal system itself – the media play a vital role in validating the remarkably similar stories of routine violence and abuse perpetrated on women in the workplace, on the streets and in their homes.
Not only can public reporting of all forms of violence against women and girls (VAWG) lead to investigation and redress for individuals, it can also encourage other victims to come forward, contributing to a much needed overthrow of public stereotypes, myths and attitudes surrounding violence against women.
Women’s right to freedom of expression
What we seek is a robust analysis of the need to protect women’s right to freedom of expression under article 10 of the European Convention on Human Rights and section 12 of the Human Rights Act 1998, whereby the court is required to have specific regard to journalistic freedoms. Indeed, the need in some circumstances to protect even prima facie defamatory statements under the umbrella of freedom of expression has been recognised in a forum no less than the European Court of Human Rights. We say this should apply even more strongly to the particularly egregious forms of harms against women that many of our cases have highlighted.
The case of Lachaux is vitally important, not just for media lawyers, but for anyone with an interest in the rights of women to freedom of expression in contexts where they are not the holders of power in society.
Pragna Patel of Southall Black Sisters says:
“We are not asking for women to be given a license to conduct trials by public opinion; rather, to show how gender justice is dependent on the public value of enabling women to come forward, rather than simply defending male power and impunity through disbelief and silence. The media present a key democratic space by which to ensure that long suppressed accounts of domestic and sexual violence and trauma surface and are taken seriously.”
Harriet Wistrich of Centre for Women’s Justice says:
“This case is another example of the worrying trend where wealthy men who are accused of abuse are able to buy victims’ silence. Libel proceedings are extremely costly and few can risk speaking out for fear of punitive costs awards against them despite the huge public interest in exposing serious wrong doing. In libel, serious harm to reputation seems to be valued more highly than the serious harm of violence against women that may be exposed by victims speaking out.”
Karen Ingala Smith of the Nia Project says:
“The publication of allegations of sexual and domestic violence can be vital in bringing forward other victims and increasing the possibility of achieving a conviction, look at Jimmy Savile and John Worboys for instance.
We already have low rates of reporting of domestic and sexual violence and even lower rates of prosecution and conviction yet we have extremely high rates of both domestic and sexual violence. If women are unable to talk about the violence they experience other than when a prosecution or conviction has happened, then this silences women, enhances impunity for perpetrators and suppresses understanding and facts about the scale and extent of men’s violence against women. The deck is already stacked against women victims of male violence without delivering the press into the hands of perpetrators as well.”