Hay v Cresswell: public interest defence succeeds for the first time in a #MeToo case

A sexual assault victim has successfully defended a libel claim brought by the perpetrator, relying both on the defence of truth and, notably, the defence of public interest under section 4 of the Defamation Act 2013.

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Factual background

Ms Cresswell met Mr Hay in a nightclub in May 2010. After leaving the club together, Mr Hay sexually assaulted Ms Cresswell as they were walking home. She promptly reported the assault to the police, who decided not to go forward with the matter.

In June 2020, Ms Cresswell published a blogpost and multiple social media posts saying that Mr Hay violently assaulted her ten years before. She also messaged and emailed Mr Hay’s girlfriend and business partner, Ms Sweeney, bringing the incident to her attention.
Mr Hay denied that he committed the assault and considered the allegation to be a deliberate fabrication.

The case focused on Ms Cresswell’s defences – in short, whether her account of events was substantially true and/or whether the publication was a matter of public interest.

Truth and credibility

The judge was satisfied that Ms Cresswell had proved on the balance of probabilities that she was violently sexually assaulted by Mr Hay in substantially the terms she had alleged.
She found that there were “a number of significantly unsatisfactory aspects of the claimant’s evidence” which impacted his credibility, including an unconvincing explanation as to why he left the nightclub with Ms Cresswell. On the other hand, the judge did not attach “any significance to minor variations” in the defendant’s account, given that she was drunk at the time and had been the victim of a traumatic sexual assault.

In terms of the delay in making the allegation public, Mr Hay argued that, if Ms Cresswell’s allegations were true, then there was “no good reason why she would not have wanted to tell the world about it”. The judge gave this analysis short shrift, setting out the numerous reasons why a victim of sexual assault might not want to publicise it.

The claimant also relied heavily on the approach taken by the police at the time of the alleged incident and the fact that they concluded that the matter was “not to be crimed”. The judge was sceptical about the various inconsistencies in the police’s records and the “superficial” and “unsympathetic” approach that they took. She also criticised the “quite frankly bizarre” reliance by the police on “what are said to be the defendant’s dreams of being raped”, which she considered to be inaccurate and irrelevant in any event.

Public interest

As a result of her finding on truth, it was unnecessary for the judge to consider Ms Cresswell’s public interest defence under s.4 Defamation Act 2013, but she did so anyway on the suggestion of the parties.

The judge was comfortable that the publications were on matters of public interest, namely because of the prevalence of sexual abuse in the tattoo industry (known as “Tattoo MeToo”); the need to protect women from sexual abuse; and the failure to prosecute sexual abuse cases.

She was also satisfied that Ms Cresswell subjectively believed that publication was in the public interest because of the sequence of events: she had reported the assault shortly after it happened; the police wrongly decided no crime had been committed; she was disillusioned by this approach; and then she spoke out as part of a movement aimed at exposing the prevalence of such abuse. The judge concluded that this belief was reasonable in all the circumstances, taking into account the fact that she conducted “such enquiries and checks as was reasonable to expect of her in all the circumstances”.

Takeaways

This case provides useful analysis on how the public interest defence under s.4 of the Defamation Act applies in #MeToo cases.

The claimant cited some of the usual factors relevant to assessing whether a publication is responsible, stemming from the case of Reynolds v Times Newspapers. Although the Reynolds factors are more usually associated with responsible behaviour in a journalism context, they were applied here to an individual’s account of her own experience.

For example, the judge held that it would be unreasonable to expect Ms Cresswell to seek out and include a comment from Mr Hay, given that she was writing from her own knowledge of being sexually assaulted and she had already tried to initiate investigations into his involvement at the time.

In terms of the tone of the piece being “less than measured”, this was hardly surprising in the judge’s view given that the defendant was writing about her own experience of a frightening and violent sexual assault.

From a claimant perspective, this is a stark example of the risks of suing over a sexual misconduct allegation. First, there is the ‘Streisand effect’ of drawing more attention to the story (so-called because of a failed attempt by Barbra Streisand to remove an aerial image of her home from a website, leading to hundreds of thousands of new visitors to the site). Secondly, there is the possibility of ending up with a judicial finding as to the truth of a criminal allegation on the civil standard of proof, rather than the higher criminal standard.

In terms of the #MeToo movement, although the judge accepted that Ms Cresswell could have taken other steps to try to protect women from sexual assault in the future including going back to the police, she concluded that the approach that Ms Cresswell took was reasonable for the purposes of the public interest defence, which may provide a degree of comfort to victims of abuse wishing to publicise their stories.

Tom is an associate in our Dispute Resolution group in London specialising in reputation protection and commercial disputes. His experience includes working with corporate and individual clients on defamation, privacy, data protection, breach of confidence, harassment and copyright issues, as well as acting in complex intellectual property and commercial disputes. He has worked with clients across a number of sectors but has particular experience in the media and entertainment and gambling sectors.

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