The global proliferation of #MeToo has been a stark illustration of the power of the internet as a platform for speech against sexual violence. Survivors continue to effectively use social media to speak out on their own terms— and, as a New Jersey court recently acknowledged, as informal “whisper networks” to inform others about predators.

In retaliation, accused abusers are increasingly filing defamation lawsuits that inflict a considerable financial, temporal, and emotional toll on survivors, who are often forced to relive traumatic events and watch as their sexual lives are opened to scrutiny. The prevalence of these lawsuits may have a chilling effect on speech about sexual violence, an already widespread and underreported problem.  

Defamation is a legal claim for injury to a person’s reputation by communication of a false statement to another person. In the United States, defamation laws vary by state. Truth is always an absolute defence but offers little relief to most #MeToo accusers, since the process of proving that incidents, especially those without witnesses, occurred is often long.

Accusers may argue their online statements are shielded by a “qualified privilege,” on the grounds they were made in good faith to someone who has an interest or duty in the subject matter, but in practice these arguments are of limited utility since, depending on judge and jurisdiction, they may not be heard until late in a gruelling legal battle and can be rejected outright.

Anti-SLAPP statutes, which currently exist in three-fifths of the US states, provide for a special motion to defeat claims intended to silence speech on an issue of public interest. Some states have declined to extend them to online speech on sexual violence, however.

The law must respond to the rise of retaliatory defamation lawsuits to ensure that survivors’ rights are protected.  

By Kendra Albert of the Cyberlaw Clinic and Sara Beladi.