Insights into litigation, sports law, media and legal culture

Journalistic failure at heart of Geoffrey Rush judgment, not #MeToo

CREDIT: KERRY HAYES/FIRST LOOK MEDIA/PAR

The Boston Globe’s “Spotlight” team is the oldest continuously operating newspaper investigative journalist unit in the United States.  Its investigation into cases of widespread and systemic child sex abuse in the Boston area by numerous Roman Catholic priests earned The Globe the 2003 Pulitzer Prize for Public Service.  The film which dramatised these events, starring Mark Ruffalo, Michael Keaton and Rachel McAdams, won the 2015 Academy Award for Best Picture.

It is easy to dismiss the painstaking grind of Spotlight’s evidence-gathering activities, as depicted in the movie, as anomalous, or not ‘real world’ journalism confronted by the media on a day to day basis.

However, the work undertaken by the journalists credited for creating the #MeToo movement demonstrates otherwise.

Within five days of each other in October 2017, Jodi Kantor and Megan Twohey for the New York Times, and Ronan Farrow for The New Yorker, broke complementary stories about Harvey Weinstein’s ‘casting couch’ conduct which led to all three obtaining Pulitzer Prizes for their work.

About six weeks later, Sydney’s The Daily Telegraph newspaper broke what it said was its own ‘World Exclusive’, this time, about Geoffrey Rush’s purported conduct during the 2015/2016 Sydney Theatre Company production of King Lear. The Harvey Weinstein revelations plainly formed a backdrop to the story. Geoffrey Rush was effectively added to a list of names to which no one would want to belong.

However, by contrast to those who broke the Weinstein story, those behind the Geoffrey Rush stories did not win Pulitzer Prizes or Walkley Awards.  Rather, courtesy of Justice Wigney’s 11 April 2019 Federal Court judgment, they are now looking down the barrel of a multi-million dollar defamation award (once special damages are calculated) for defamation.

Could it be the case that these differing outcomes are the product of Australia’s ‘draconian’ defamation laws? Should we rue the fact that Australia does not have constitutionally protected first amendment rights like the United States? Does this mean that the #MeToo movement in Australia is being strangled by our legal system?

In short, no.

The answer lies in journalistic rigour. However, don’t take my word for it. Let’s contrast the work of the three Pulitzer Prize winners (who let’s not forget, started the #MeToo movement) to the nature of the conduct revealed by Justice Wigney’s findings.

A. The headlines

It may seem minor, but one cannot help being struck by the prosaic nature of the New York Times / New Yorker headlines when contrasted to the Daily Telegraph equivalent.

The original Weinstein story which broke in the New York Times (Kantor / Twohey, 5 October 2017) was called, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades.

In The New Yorker (Farrow, 10 October 2017) the relevant headline was, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s accusers tell their stories.

The original Rush story which broke in The Daily Telegraph (Moran, 30 November 2017) was called,  King Leer – World Exclusive – Oscar winner Rush denies ‘inappropriate behaviour’ during Sydney stage show.  Inside, the heading of the story was, Star’s Bard Behaviour, with the sub-title above, Oscar winner Geoffrey Rush denies complaint made.

Another story about Rush published by The Daily Telegraph the following day under the headline, We’re with you, doubled down on the story.

The ‘sensation’ of the Weinstein headlines arises solely from their content, not from any puns.  The headlines are bald. The headlines could not be any clearer about the nature of the allegations made. They suggest that the authors can prove what they say.

By contrast, the Rush headlines use puns to imply that he has engaged in inappropriate behaviour of a sexual nature. The introduction of the denials creates a confused picture. The clear and unequivocal nature of the Weinstein headlines is not there.

The prominently published denials were relied on by Nationwide News to remove or undo the defamatory meaning of the headline. In defamation law, this is called ‘bane and antidote’.  Justice Wigney rejected this attempt. He found that the headlines implied guilt, and that the ordinary reasonable reader would construe the denials as, “Well, he would deny the claims, wouldn’t he”.

B. The work PUT into the story

The journalists behind the Weinstein stories took years before they were ready to publish. Rumours had been circulating for a long time, and other journalists had tried to pursue allegations of Weinstein’s misconduct without success. It is apparent that they were painfully aware of the implications if they got the story wrong.

By contrast, the publishers of the Daily Telegraph story took about six weeks (if not less) to publish, after the Weinstein story had broken. The Weinstein story had started a juggernaut which was later coined the #MeToo movement. Other names were entering the public arena, including Kevin Spacey and, in Australia, Don Burke. Justice Wigney referred to the media’s portrayal of these men as “sexual predators”. However, the naming and shaming campaign, in the case of some of these targets at least, was without the rigour of the original Weinstein stories.

To illustrate, Twohey and Kantor for the New York Times meticulously chronicled Weinstein’s conduct.  They also worked hard to persuade Weinstein’s accusers to speak to them. Twohey said she and Kantor continuously reassured their sources (NPR, Fresh Air, 15 November 2017):

We’re going to work this story as hard as we can around clock until we get it, until we get at the truth – and then we’re going to publish the truth.

Kantor added:

Really important components of our reporting were, first of all, figuring out the settlement trail. We were able to trace the legal and financial records where Harvey Weinstein – again and again and again – had silenced women who had come forward with some sort of allegation, using money, legal muscle, using some sort of professional intimidation. And so our goal was almost to reverse-engineer that process.

The two journalists particularly relied on a 2015 memo that a young employee of Weinstein Co. named Lauren O’Connor wrote, in which she used the line, “The balance of power is me: 0; Harvey Weinstein: 10“. This was a long memo where she detailed sexual harassment at the company.  They were able to get this and obtain other company records.  This helped the reporters to get women on the record, by convincing them they were not alone.

One of the reporters who had seen the story die before it was published was Ronan Farrow, the son of Mia Farrow and Woody Allen (from whom he is estranged).  When an employee at NBC,  he witnessed first-hand its decision not to pursue the Weinstein story on the basis that it was apparently too hot to touch.

Somewhat ironically, Donald Trump has separately remarked on NBC’s decision not to pursue the story. The reference to ‘look at their license’ (permission to broadcast) indicates why first amendment rights in the United States can be overrated. Regulatory and commercial imperatives impose their own pressure on media organisations

Ronan Farrow left NBC as a result, and hit rock-bottom career-wise. He said:

Tackling the Weinstein story as doggedly as I did — my career fell apart completely. My contract was ending. My book publisher dropped me. Another news outlet was racing to scoop me. I was falling behind. I didn’t know if I would ever be able to report this story. (Littleton, Variety, 6 October 2018)

He was also impacted by the prospect of letting down “woman after brave woman” who had spoken with him about the story.  He described himself as “scared shitless. I had no idea if I was doing the right thing.”

By contrast, what prompted the Telegraph to publish was the rumour itself, not its underlying truth. The best source of what happened is the STC’s statement:

Sydney Theatre Company was asked by a News Corp journalist earlier this month whether it had received a complaint alleging inappropriate behaviour by Mr Rush while he was employed by the company. STC responded truthfully that it had received such a complaint.

In other words, upon being informed that there was confirmation of a complaint, the Telegraph considered itself ready to publish. But a complaint, as illustrated by the work of the Pulitzer Prize winners, is Step 1 of the journey.  It is no different from one of the settlement agreements that Twohey and Kantor had to reverse engineer.

There is no evidence that the publishers of the Geoffrey Rush story obtained from the Sydney Theatre Company any relevant company documents before they published.  After the case commenced, Nationwide News issued a subpoena to the STC.  In an interlocutory decision, the judge commented upon the breadth of the subpoena, which sought all records of the complaint, emails between Sydney Theatre Company employees and the Board, copies of the nightly show report and/or any other report or log by stage management or production personnel, and a range of other documents.

Further, the publishers of the Geoffrey Rush story pressed print without obtaining the cooperation of one person who could confirm the precise nature of her complaint to the STC.

C. The contact made with the targets of each story prior to publication

There was inescapably competitive tension between the New York Times and The New Yorker. Each wanted to publish first.  Ronan Farrow was painfully aware that the New York Times was trying to “scoop” him.

Remnants of that competitive tension remained in an NPR interview with Kantor and Twohey (NPR, Fresh Air, 15 November 2017).  When asked whether they had talked with Farrow following the publication of the stories, Kantor responded, “Barely. We exchanged an email or two. We formally invite[d] him for a drink some time“. Perhaps appreciating that this might sound a little churlish, Twohey added, “We just want to tip our hat to Ronan Farrow. We’d like to acknowledge the impressive and important work that he did“.

The race to publish can lead to cut corners.

It was David Remnick, The New Yorker’s editor since 1998, who put paid to that idea. He insisted on giving Harvey Weinstein four to five days to respond to the long list of shocking allegations in the story. Farrow acknowledged that this checked the competitive pressure he felt to beat the New York Times to publishing:

He said, ‘Yeah, no. The New Yorker very much is deliberately unaffected by the storm’. The concern was we were going to be very fair to Harvey Weinstein. (Littleton, Variety, 6 October 2018)

Geoffrey Rush was not given four days to respond to the allegations made against him in the Telegraph story.

According to Rush’s legal team (extracted uncontroversially in the judgment), Rush was approached, through his agent, at 5.06 pm the night before the publication of the first story, in relation to a story “running in tomorrow’s” paper.

The story was going to concern “an alleged incident of abuse”, and that the investigation was part of a broader investigation in the wake of the Don Burke and Harvey Weinstein scandals.

That he would be called “King Leer” and accused of “Bard behaviour” was not communicated to him.

So too, comment was not sought of Rush in relation to the follow up story the next day, until 6.20pm on 30 November 2017.

D. The effect of a truth defence without knowing all the facts IN ADVANCE

The Daily Telegraph’s first attempt to plead a truth defence failed, and it was struck out. I have previously discussed this decision. It was only after Eryn Norvill, the original complainant,  decided to testify at trial that the Telegraph was able to re-invigorate its truth defence.

Ms Norvill had become the star witness. However, the position she was in was virtually impossible, through absolutely no fault of her own.

First, the allegations were very serious. This meant that, for the Court to accept that they were true, the Court had to be satisfied that the evidence was clear and cogent. As Wigney J said in his judgment:

There could be little doubt that the allegations that Nationwide and Mr Moran levelled against Mr Rush in their truth defence are grave allegations. That is a factor which must be borne in mind when considering whether Nationwide and Mr Moran have discharged the onus of proving, on the balance of probabilities, that the imputations were substantially true.

Secondly, Ms Norvill was not truly providing her side of the story.  She was being asked to prove the truth of what the Telegraph had written about Geoffrey Rush. Which it had published without the benefit of her cooperation.

Thirdly, Ms Norvill was required to recall events that had not previously been tested with any rigour.  This is not to be critical of Ms Norvill at all.  Consider this timeline:

  • Late 2015/ early 2016 – The production of King Lear takes place.
  • 5 April 2016 – A meeting between Ms Norvill and Ms Annelies Crowe, the company manager of the STC was held at Ms Norvill’s request in an Annandale pub in Sydney at which Ms Norvill outlined her concerns. Ms Norvill gave evidence at trial that she and Ms Crowe “drank a lot” that night and that Ms Crowe did not take any notes. Some of the contents of an email Ms Crowe sent STC colleagues the following day about what Ms Norvill had apparently said to her were disputed by Ms Norvill under cross-examination. Ms Crowe did not give evidence.
  • Shortly after 5 April 2016 – A further meeting was held between Ms Norvill and her agent, and STC representatives (none of whom gave evidence). This was later described as an “off the record” meeting, and was held at another bar.
  • June 2016 – There was a conversation between Ms Norvill and fellow actor Robyn Nevin when both were performing in the play All My Sons. The contents of this conversation were disputed at trial. Ms Nevin gave evidence.
  • 30 November 2017 and 1 December 2017 – The Telegraph articles were published.
  • 13 August 2018 – Now legally represented, Ms Norvill signed a statement outlining the evidence she was to give in the proceeding.
  • October / November 2018 – Trial of the proceeding, during which Ms Norvill gave evidence.

The best evidence is contemporaneous evidence. This is where a person records what happened almost immediately after the fact (e.g. in a diary or notebook). There was no such evidence.

Rather, Ms Norvill was in the invidious position of having to do a memory test, years after King Lear.  Further, the memory test couldn’t just be ‘a little bit right’, or ‘a lot right’. It had to meet a very high bar given the serious nature of the allegations levelled against Geoffrey Rush.

It was also unlikely to be sufficient for Ms Norvill to provide an authentic expression of her own experience.  She had to justify the imputations conveyed by publications in which she had played no part.

For the judge, he was forced to become, in effect, the journalist, evaluating post-publication, in a highly charged and artificial environment, the strengths and weaknesses of a hypothetical source.

Is it any wonder then, that the evidence of the hypothetical source was found wanting? As Wigney J said, this was not a scenario in which he had found Ms Norvill to be a liar. “The issue is not as black and white as that“, he said. “Life is not that simple“.

He further said:

An otherwise honest witness may give unreliable evidence for all manner of reasons. The witness’s memory of the event may be poor or defective. The witness’s memory of an event may also become distorted or polluted over time because of other intervening events or circumstances. The witness might, in such circumstances, convince himself or herself that something occurred, and genuinely believe that it did, even though it did not.

E. Getting to the truth

The truth is not an indulgence to be honoured in the breach.  As an ordinary reasonable reader of media stories, I have no issue with strong opinions, or strong allegations, so long as the underlying facts are true. Public interest may also justify the publication of stories which are less certain if, amongst other things, the target has been offered an appropriate opportunity to respond prior to publication.

All of these things require an attention to detail, and if the allegations are serious, commitment to the painstaking grind. Only when that process has concluded can the publisher evaluate whether there is sufficient evidence to publish, or whether the evidence simply is not there.

The vindication of Geoffrey Rush’s reputation is the necessary result of a failure to adopt such an evidence-based approach.

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