Defamation in the Age of #MeToo

Calumny of Apelles by Sandro Botticelli

In 2019, a Swedish journalist was convicted of gross negligence defamation – a crime under the Swedish Criminal Code – for alleging that she had been raped by a fellow journalist. This conviction was not the only example of women being prosecuted for sharing their experiences of sexual violence in Sweden in the wake of the #MeToo movement. One study looked at twelve such cases, all resulting in a finding of defamation or gross defamation.[1] Nor are such cases restricted to Sweden; they are indicative of a global trend. In many other jurisdictions throughout Europe and the world, defamation claims have been brought in response to public accusations of sexual violence. Perhaps the most well-known example in recent years is the litigation brought by actor Johnny Depp against Amber Heard in the US and against the Sun newspaper in the UK.

The Swedish context raises a number of thorny issues about truth, power, free speech, and reputation. Unlike in other jurisdictions such as the UK, the US and Canada, defamation is an offence under both civil and criminal law in Sweden. Moreover, under the Swedish Criminal Code, truth is a defence to defamation only if the defendant was ‘obliged to make the statement’ or the statement was ‘justified’ in the circumstances. In many of the cases mentioned, the Swedish courts decided that making the statements was not justified and therefore did not even consider whether they were true.

In English law, truth is a complete defence to a defamation claim. According to the Second Restatement of Torts, an influential treatise summarising principles of US tort law, falsity is part of the definition of a defamatory statement. Is the solution, then, to align the Swedish Criminal Code more closely with other jurisdictions such as the UK and the US? This would certainly offer an additional layer of protection to accusers, but it would not protect all of those who wish to speak out about sexual violence, as it is notoriously difficult to prove the truth of such allegations. More generally, although it might seem that we should be able to make true statements irrespective of reputational harm, there are good reasons for refraining from treating truth as a catch-all justification for defamatory speech.

Truth and Reputational Harm

True defamation can undermine attempts to rehabilitate criminal offenders who have already paid their debt to society.[2] It can also lead to disproportionate and unnecessary harm that hardly seems in the public interest. Consider the case of Jennifer Eliot, daughter of the actor Denholm Eliot. Eliot was unknown to the public, and a few days after the News of the World published personal details about her struggle with drugs and sex work, she committed suicide. This case raised issues of privacy as well as defamation, but it is an example of a case in which the truth defence would clearly be inappropriate. The truth defence assumes that, if the defamatory speech is true, there is a sense in which the resulting reputational harm is deserved. This rationale is plausible enough when the defamatory speech suggests that a person has committed a serious wrong, in which case we would expect some loss of social esteem, but it breaks down when the harm is undeserved or clearly disproportionate.     

Consider also cases of bigoted defamation, where a person suffers from reputational harm because of social prejudices. This might happen if, say, a woman is ‘accused’ of promiscuity, and suffers a loss of respect or social status. Such a loss is not a justifiable response to the statement but rather trades on social prejudices such as the excessive scrutiny of female sexuality, double standards regarding the promiscuity of women and men, outdated notions of female chastity, the prevalence of rape myths, and so on. These cases raise a quandary for the law. On the one hand, we do not want the law to throw its weight behind attitudes that are bigoted or anti-social, thus validating them. This is why courts in the UK and the US have rejected defamation claims brought by people accused of ‘snitching’. While there are some sub-communities that would attach great stigma to co-operating with the police, courts have been reluctant to support these attitudes by finding the comments defamatory. Similar points can be made about statements that impute homosexuality, transgenderism, minority racial or ethnic identities, and indeed membership of any group subject to prejudice, marginalisation and oppression. Those who adopt unjustified attitudes towards these groups might lower their estimation of anyone they believe to be a member of them. But if the law considers this a reputational injury worthy of compensation, is it not complicit in supporting these attitudes?

On the other hand, the reputational harm suffered by a victim of defamatory speech is no less real because the statement trades upon social prejudices. It would be no comfort to a person being despised, ridiculed, denounced, and ostracised to say that the grounds on which these harms are being inflicted on them are unjustified. Cases of bigoted defamation can therefore impose a double burden on vulnerable victims: not only do they suffer harm as a result of social prejudices, but the law then denies them any remedy or recourse for this harm. This double burden is most likely to be suffered by people who are already members of vulnerable or marginalised groups.

Justified Speech

Perhaps, then, the issue with the decisions of the Swedish courts was not so much the fact that truth could not be applied as an absolute defence, but the finding that making the statements was not justifiable. One of the points made repeatedly by the courts was that the defendants could have told their story with the names of perpetrators removed, and so naming and shaming was unnecessary. A worry about this approach is that it encourages a culture of silence surrounding sexual violence, or a form of neutered speech in which the lack of information identifying the perpetrator may be taken by listeners as a sign of unreliability rather than an attempt to comply with the law.  

It can also be argued that the courts applied far too stringent a threshold for justification. One issue is that the truth of the statements only bars responsibility if the statements are not held to be justifiable. This means truth need not even be considered if the court determines that the statements were not justifiable. But can the justifiability of making a public statement really be determined independently of its truth? I suggested above that truth should not be a universal defence, but doesn’t the truth of a statement, or at least the fact that there are reasonable grounds for it, make a difference to the justifiability of making it? It is hard to imagine many situations in which it is unjustified to make a true accusation of sexual violence. 

The question of justifiability is also loaded with difficult issues regarding political speech. It may be thought that factual allegations of wrongdoing are personal, not political. But allegations of sexual violence arising from the #MeToo movement are the perfect demonstration that this claim is too narrow. Of course, we must be wary of using particular cases as vehicles for political goals, ignoring their individual facts and context. But allegations of specific instances of sexual abuse can be vehicles for political speech for many reasons. First, they might seek to identify cultures and patterns of behaviour that are not restricted to the present case. Second, allegations in the wake of #MeToo were often combined with a demand to believe women, which was not a statement about any given case but an attempt to address what has been termed ‘epistemic injustice’,[3] where female testimony is systematically downgraded relative to that of men. It can hardly be denied that many allegations of sexual violence were freighted with political meaning, and political speech has a greater claim to protection from legal interference than merely personal speech.  

In light of all this, the Swedish model, by making truth contingent on a prior finding of justifiability, risks silencing speech that is not only truthful but also politically and socially significant. At the same time, a blanket truth defence, as found in many common law jurisdictions, may fail to account for the real harms caused by defamation that exploits prejudice or inflicts gratuitous reputational damage. What is needed, then, is a more nuanced approach: one that recognises the political dimensions of speech about sexual violence and the epistemic and structural injustices facing those who speak out, while remaining sensitive to the harms defamation can cause. This nuance is all the more difficult to achieve in the fast and furious landscape of social media where things can quickly spiral out of control, and speech is highly polarised. It remains to be seen whether, in this radically transformed communicative environment, it is possible to achieve anything close to a context-sensitive approach.

[1] Wegerstad, L., Andersson, U. The Only Path to Justice: The Criminal Legal System and Defamation Judgments Related to #MeToo in Sweden. Fem Leg Stud 32, 231–252 (2024).

[2] This is why, in English law, truth is not available as a defence for the defamation of a rehabilitated person if the statement was made with malice. Rehabilitation of Offenders Act 1974 S. 8(5).

[3] See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford, 2007).

Adam Slavny is a Reader at the University of Warwick. His primary area of research is the philosophy of tort law, although he maintains a general interest in moral, political and legal philosophy. His monograph is Wrongs, Harms and Compensation and he is an associate editor for The Journal of Applied Philosophy.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.