Victims of crime, including historical sexual assaults where the perpetrator was not prosecuted can carry distress and trauma with them for many years. The #Me Too Movement increased awareness of the damage to victims caused by a failure by authorities to follow up on allegations of serious sexual crimes and victims often sought redress in other ways.
One method victims have used to seek some form of alternative justice where assaults on them have never been investigated is through posting about their experiences on social media. Nath Solicitors represents individuals in this situation, and we always urge caution because of the potential for a victim to become the subject of a defamation claim brought by someone they name on social media. Particular care should be taken when posting about alleged sexual assaults where police investigations did not result in a conviction.
Victims of assault can however take some reassurance from the case of Hay v Cresswell (2023) where a survivor of sexual abuse was able to defend social media postings about the abuse that named the perpetrator on the basis that the postings or ‘publications’ were true and in the public interest.
Hay v Cresswell: Publication Of Sexual Abuse Details In Public Interest
Hay v Cresswell was the first reported case where a sexual assault victim successfully relied on the defence of public interest when they publicly named their alleged perpetrator on social media. The defendant, Ms. Cresswell published statements on a news website, Facebook and Instagram detailing how she had been assaulted by the claimant in the defamation action, a Mr. Billy Hay. The statements included the headline:
‘Glasgow tattoo artist pinned me to wall and assaulted me: he should not be tattooing women.’
And one article went on to say:
‘This story is about yet another male predator in the tattoo industry. His name is Billy Hay (of Bath Street Tattoos and he sexually assaulted me when I was 19.’
Following the publications, Mr. Hay brought a libel claim against Ms. Cresswell. The allegations had been reported to the police within hours of the incident taking place, however, the police did not treat it as a crime. Mr. Hay was never arrested, charged or convicted. Mr. Hay argued that the so-called ‘presumption of regularity’ meant that when the police made their decision against arrest, that decision had been properly performed. Ms. Cresswell however, sought to rely on the defence of truth and the defence of public interest.
The court declined to apply the presumption of regularity, deciding that the principle did not have the same cover-all effect that Mr. Hay claimed. On the evidence before it the court found that Mr. Hay’s evidence was flawed. This was largely because he gave significantly differing accounts of events throughout the course of the litigation. In order for her defence to succeed, the defendant simply had to establish that her version of events was on the balance of probabilities, true.
Although there was limited evidence to support her claims, the court found that Ms. Creswell’s evidence was more persuasive than Mr. Hay’s. The fact the police had failed to consider the allegations as a crime did not undermine her evidence.
The judge went on to decide that the defence of public interest also succeeded. It was found that Ms. Cresswell had satisfied the three components of the defence of public interest:
- Her publications were a matter of public interest (for example, there was at the time widespread abuse in the tattoo industry, and this was a matter of great public concern)
- She believed her publications were of public interest
- She reasonably believed this
Comment
Victims of crimes such as sexual assault should be cautious when posting their allegations on social media if there has been no conviction. As the Cresswell case demonstrates however such posts may be deemed to be in the public interest. They may also be found not to be defamatory if a court finds the allegations to be true on the balance of probabilities. If allegations do not pass the ‘truth test’ or are deemed not to be in the public interest there remains the risk that such publications may continue to be held to be defamatory.
Contact Us
At Nath Solicitors, we specialise in defamation law. If you need advice, contact us on 0203 983 8278 or get in touch with us online.
