How the law silences women and what we can do about it

In 2017, the hashtag MeToo went viral with an outpouring of allegations in relation to gender-based violence, sexual harassment and bullying. The movement confirmed that gender-based violence, harassment and abuse are endemic and pervasive – and that impunity rates remain high. According to the UN, 1 in 3 women suffer gender-based violence – making it the most pervasive human rights violation in the world. The right to be free from gender-based violence, a right which is recognised by the Committee on the Elimination of Discrimination against Women (CEDAW), is far from being respected, protected and fulfilled.

MeToo was soon countered by a cascade of lawsuits. In Japan, Shiori Ito – described as the Japanese spearhead of the MeToo movement and named one of Time Magazine’s people of the year in 2020 – was sued for giving a press statement on police failure to properly investigate her allegations of rape. In Colombia, two feminist journalists are being sued in civil and criminal defamation proceedings for publishing allegations about alleged sexual misconduct by a Colombian film director. In 2021, the pan-African strategic litigation organisation ISLA organised a week long workshop analysing and discussing cases in South Africa, Uganda and Kenya where women are being sued by the men they accuse of rape, sexual harassment or misconduct. This is a global phenomenon.

According to the UN Special Rapporteur on Freedom of Expression, there is a particular gendered element to the use of defamation laws to silence accounts of abuse and violence. Writing in a dedicated report on the issue of ‘gendered censorship’ in 2021, Irene Khan explained that:

In a perverse twist in the #MeToo age, women who publicly denounce alleged perpetrators of sexual violence online are increasingly subject to defamation suits or charged with criminal libel or the false reporting of crimes. Weaponizing the justice system to silence women feeds impunity while also undermining free speech .

In our book How Many More Women? we document cases from around the world where women, their family members and friends, journalists, and human rights defenders are facing lawsuits for making allegations of gender-based violence. We interviewed women who explained that they experience these lawsuits as a form of continued abuse. In the case of human rights defenders, these lawsuits have come to be known as strategic lawsuits against public participation (‘SLAPPs’) and are termed ‘judicial harassment’. Abortion rights activists told us about how they were sued in defamation by government officials for filing reproductive rights cases. Survivors told us about how they were contracted to silence through the NDAs they felt pressured by circumstance to sign. Journalists and in-house legal counsel at media outlets have told us about the eye-watering costs of printing such allegations, and have described the ‘legal minefield’ of publishing such allegations when contempt laws, NDAs, privacy and defamation risks all come into play. This means that many self-censor and only the largest media organisations can take the legal risk to print these stories and, in some circumstances, even their cases are settled for financial reasons.

The result? The truth is buried and speech is chilled.

This is a serious problem. As we explain in the book, it is often only through the press carrying out its watchdog role, and through media reporting, that powerful men have been held to account for misconduct and worse. Think Harvey Weinstein, R. Kelly, Bill Cosby.

For individual women, the costs risks and the legal risks of speaking out are so much worse. Our book opens with the Supreme Court case of Stocker v Stocker, where an allegation of gender-based violence was made on a Facebook wall. Mrs Stocker was sued by her ex-husband for saying that he had ‘tried to strangle’ her. This was a case in which it was ‘beyond dispute that Mr Stocker grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place’ and that a non-molestation order had been breached. A High Court judge determined – following the legal and dictionary definition – that her words, ‘he tried to strangle me’ must mean that Mr Stocker had intended to kill her. Despite the evidence she had, it was not enough to prove the meaning that the judge gave her words. The judge concluded that ‘his intention was to silence and not to kill’ – and therefore she had libeled her ex-husband and was ordered to pay him damages. The Court of Appeal agreed. It would take seven years of litigation, and a Supreme Court judgment to end Mrs Stocker’s legal nightmare. Domestic violence and women’s rights charities were outraged and terrified. Something had gone seriously wrong in the balancing exercise between the right to reputation and the right to free speech, if Nicola Stocker’s police-documented experience of domestic violence was not enough to defend the defamation claim against her. And it’s not just defamation claims – look at the costs of challenging the validity of NDAs. When the Telegraph tried to publish the stories of women who had signed NDAs in relation to Sir Philip Green’s misconduct, they were sued. The Court of Appeal upheld an interim injunction preventing the reporting: his rights under the contracts were privileged over and above the right of the women and the newspaper to free speech. The matter never made it to trial – with Lord Hain outing Green using parliamentary privilege – but the legal costs of the interim injunction application alone reportedly ran to an eye-watering £3 million. How many women or media organisations can afford these costs or take this cost risk to challenge NDAs? The result we see in our practice – and from the interviews we did for the book – is that many women remain contracted to silence, including in circumstances where the man involved is a repeat workplace offender.

Through our own experiences working on media law cases and women’s rights issues, through interviews and analysis of case law from around the world, we expose some of the ways in which different laws are complicit in silencing women’s experiences and allegations of abuse.

The principal argument we make in the book is that we cannot tackle the problem of gender-based violence if we cannot talk about. We must understand that talking about gender-based violence is an important public interest issue. Speaking about experiences or accounts of abuse and misconduct is also an important aspect of informational self-determination, which is a part of the right to free speech. We make the argument that in the current balance – between his right to reputation and her right to free speech – we are missing important additional rights: her right to live a life free from gender-based violence and her right to equality. On 1 February 2023, the Constitutional Court of Colombia adopted our approach to this issue in defamation claims, making a landmark free speech decision which affirms that women must be able to talk about their experiences in a medium of their choice without being legally silenced and that journalists must be able to report their stories.

Since the publication of our book, we have received emails from King’s Counsel and fellow barristers asking us about the redactions in the book. Writing a book on media law and on live cases about gender-based violence around the world has not been straightforward. The redactions are a testament to that – and were deliberately intended to give readers an immediate and obvious insight into how the law silences speech about gender-based violence. One of the stories we included in the book was a high-profile case in Australia, involving allegations made by former political staffer, Brittany Higgins, that she was raped by a colleague in the parliamentary office of the Minister for Defence. We chose to tell Higgins’ story in the book as an example of a case where a woman speaking out contributed to a protest movement for change – and law reform. It was only after the public outcry that followed her decision to speak out that the alleged perpetrator faced criminal prosecution – and contempt laws kicked in to protect his right to be presumed innocent. Our book was due to be published after the trial and any verdict. But following high-profile public comments made by television and radio personalities, the trial was postponed – and the judge issued a stern warning to all about any public comment on the case. Many books due to be published at the same time decided to remove all reference to Higgins’ story and case. We took a different view: rather than remove, we redacted – to show readers in an immediate way, through the blackened-out text, how the law censors and restricts what we can say about gender-based violence.

The criminal trial finally took place in November and Higgins was cross-examined at length. As is common in criminal trials, the defence shifted the focus from the conduct of the accused onto Higgins. Media reporting followed suit, describing the case as ‘the Higgins trial’, a fact she herself would later say was wrong in principle, but accurate: she said the criminal justice process made her feel like she was put on trial instead of her accuser. Unfortunately, there would be no verdict: the jury had to be dismissed after two weeks of deliberation due to juror misconduct and a re-trial was ordered. But soon after the prosecutor announced there would be no re-trial due to ‘significant and unacceptable risk to the life of the complainant’. Higgins had faced two years of victim-blaming attitudes from men in power and in the media, torrents of online abuse, rape and death threats, and was hospitalised due to stress. Her experience confirmed for many women why they would never report their alleged abuse – a fact reflected in the statistics: only 14% of rapes are ever reported to the police in the UK, Australia and Canada. And since then, the accused has issued numerous defamation suits against the Australian media. So Higgins will still have to give evidence again, this time in the civil courts (just as Amber Heard did in Johnny Depp’s case against the Sun in the UK) to assist the media to defend these defamation claims and defend her truth.

This is not surprising. As we document in the book, women making accusations of gender-based violence or media companies reporting them are frequently threatened or sued for publishing the claims. For example, the BBC recently reported that Andrew Tate has sent a legal letter threatening to sue the woman in the US who has accused him of rape and trafficking. He is reportedly seeking $300 million (‘Andrew Tate threatens legal action against accuser', BBC News, 18 February 2023).

As well as the public interest and free speech argument that we make, the book contemplates how we can ensure costly legal proceedings do not stifle women and survivors of abuse from speaking their truth. It explores how women are fighting back through counter suits, law reform campaigns and social media affirmative consent initiatives. The law must protect women rather than punish them, it must facilitate speech rather than be complicit in such silencing and we need legal mechanisms to ensure costly and stressful claims can be easily dismissed when they amount to SLAPPS.

As British Parliament prepares to debate proposed anti-SLAPP legislation, we argue its time the debate considers gendered censorship – and how SLAPPs are being used to silence women from speaking about their experiences of violence. Our research shows that there is a need for anti-SLAPP legislation to protect speech on violence against women as speech in the public interest. This is one way in which a fairer balance could be struck between his right to reputation and her right to free speech.

Because what is the human right to free speech worth if we cannot afford to defend it? And how can governments fulfill their human rights obligations to ensure that women live a life free of gender-based violence if we cannot talk about it?