QotD: “An alleged sexual abuse victim’s successful defence against a defamation claim could set an important precedent, lawyers say”

A landmark ruling where an alleged sexual abuse victim successfully defended a libel claim does not give carte blanche for survivors to name perpetrators, lawyers argue.

Nina Cresswell, 33, claimed that she had been sexually assaulted by a tattooist, Billy “the bastard” Hay, at a nightclub in Sunderland in 2010 when she was a 20-year-old student.

She reported an attempted rape to Northumbria police immediately after the alleged assault, but within hours officers decided that her complaint would not be treated as a crime.

A decade later, when the #TattooMeToo campaign was exposing the prevalence of sexual abuse in the tattoo industry, Cresswell publicly named Hay as her attacker in a blog, an email and social media posts to alert other women about his behaviour towards her.

Hay sued for libel, claiming that her defamatory publications had caused serious harm to his reputation and resulted in him losing work.

Cresswell relied on the defences of truth and public interest, set out in the Defamation Act 2013. After a four-day trial at the High Court in London, Mrs Justice Heather Williams ruled that Cresswell’s allegation that Hay had violently sexually assaulted her was “substantially true on the balance of probabilities” — the civil law standard of proof, which is lower than the criminal standard of beyond reasonable doubt.

The judge said that Cresswell’s credibility was not undermined by “minor inconsistencies” in her account, the fact that she had not made the public allegations sooner or by the police’s decision not to take any action.

Additionally the judge ruled that Cresswell’s publications were “on a matter of public interest”, that Cresswell believed that it was in the public interest to publish them and that her belief was reasonable in all of the circumstances.

The media would normally be expected to have contacted a subject for comment before publishing allegations. But, crucially, the judge held that it would have been “unreasonable” to expect Cresswell to have sought a comment from Hay or included his denial because she was “writing from her own knowledge of the sexual assault on her”.

Four years after the Court of Appeal ruled that the public interest defence was not limited to the media, the case is believed to be the first where an alleged victim has successfully relied on it when the other party has sued for libel.

Lawyers suggest that it sets an important precedent in relation to the discussion of “experiences of sexual violence” online.

Tamsin Allen, a partner at the law firm Bindmans, who represented Cresswell, says that the judgment “gives much-needed support and guidance to women who seek to name their attackers to protect others”. The ruling, she says, clarifies the law for those who claim to have been silenced by their alleged abusers and failed by the police.

Allen describes the ruling as “a powerful testament to the bravery” of Cresswell “in defending the claim over two years at huge personal cost, and underlines calls for reform in libel law so that public interest publications can more easily be defended”.

(Source)