This story is part of Inq’s series on the media trial of Geoffrey Rush. Read the full series here from Friday, July 3.
In October 2017, The New York Times published a series of stories about the sexual crimes and misconduct of famous movie producer Harvey Weinstein.
The story went around the world.
Subsequently, actress Alyssa Milano posted on Twitter: “If all the women who have been sexually harassed or assaulted wrote #MeToo as a status, we might give people a sense of the magnitude of the problem.” Millions of women (and men) did so, spawning a global movement.
A month later, The Sydney Morning Herald and the ABC jointly published a series of stories with allegations against Don Burke, albeit on a lesser scale than those against Weinstein. In it, three women said that they had been subject to indecent assault, sexual harassment and bullying from the star of the Nine Network’s ratings juggernaut Burke’s Backyard.
After the stories were published, more complainants came forward.
It was in this context that Sydney’s The Daily Telegraph newspaper, desperate to play catch-up with the SMH and the ABC, and trying to find a way into the biggest story in the world, made its first mistake.
A mere three days after the Don Burke piece, they rushed into print a story about Oscar-winning Australian actor Geoffrey Rush.
Australia has one of the strictest sets of defamation laws in the world. Just the prospect of being sued and having to pay millions of dollars in damages and costs has a chilling effect on our journalism.
After Rush sued Nationwide News Ltd, publisher of the Telegraph, editors became even more risk averse. But it wasn’t just journalism that suffered.
The lives and careers of Rush, the reluctant complainant, actress Eryn Jean Norvill, along with several of the witnesses, haven’t been the same since.
In his 2019 judgment, in which he found that Rush had been defamed by the paper, Justice Michael Wigney said: “… it would have been better for all concerned if the issues that arose … were dealt with in a different place to the harsh, adversarial world of a defamation proceeding.”
This case has also highlighted the challenges of navigating your way around the criminal law, social mores and defamation.
As my criminal law lecturer was fond of reminding us, “the law is an imperfect instrument for regulating human relationships.”
The Me Too movement has highlighted the behaviour of men, ranging from sexual assault (Weinstein is currently serving a 23-year jail sentence) to unwanted sexual advances. Should behaviour at the lower end of that scale end up in the courts, or be dealt with by one’s employer? Where do you draw the line?
In practical terms, it’s not hard to see why so few victims of sexual harassment take action. The cost and difficulty of bringing a case means that most matters are settled; the median damages payout for a harassment case is less than $30,000. Only a tiny number of cases make it to court and if complainants speak out in the media, they risk a defamation suit.
Norvill made what she considered to be a confidential complaint about Rush’s alleged conduct to the management of the Sydney Theatre Company, and did not co-operate with the Telegraph’s story. But yet, due to the ineptitude of her former employer and the newspaper, her name was dragged through the mud, as was that of her friend Yael Stone, who supported her.
Last Monday, almost three years after the Don Burke story, a new sexual misconduct saga was uncovered. Two of Australia’s best journalists, the SMH’s Kate McClymont and Jacqueline Maley, published a series of stories about former High Court judge Dyson Heydon.
The difference between this story and the Geoffrey Rush story could not be clearer.
McClymont and Maley worked on the Heydon story for two years, had multiple women on the record and had a team of people fact-checking every single statement in the story.
On top of this, the High Court had investigated the claims and found in the women’s favour — the SMH had a copy of this decision and a statement from Chief Justice Susan Kiefel, which included an apology.
What this should tell editors is that if you want to publish these stories, you need time to research and check them and you need experienced journalists like McClymont, a multiple Walkley-award winner, to direct them. This takes an enormous amount of time and resources, which only the larger media groups can afford.
This morning, Geoffrey Rush’s $2.9 million damages award was upheld in the appellate court, but that sum of money pales into comparison with the expected final calculation of the legal fees.
Legal sources said yesterday that News’ costs would be millions of dollars, which is good news for Sydney lawyers and bad news for Rupert Murdoch, who will end up having to foot the bill. Defamation payouts and their legal fees are largely uninsurable.
The biggest loser is the group of marginalised women (and men) who, seeing what happens to complainants, will think twice about speaking out.
What did happen to Norvill in the STC’s production of King Lear? Thanks to the actions of the Telegraph and her former employer, the Sydney Theatre Company, we will never know.