#MeToo allegations and trigger warnings: when sensitivity can backfire

When a person chooses to make #metoo allegations on social media, there is almost always going to be some risk that they are exposing themselves to potential defamation proceedings.  The easiest way to limit exposure is to avoid naming the accused person, or including information that may identify them.  Many people, however, feel compelled to name and shame.  Such accounts almost always come with some level of risk, however, in an increasing number of cases the biggest risk is coming from an unexpected place – the trigger warning.

When discussing sensitive topics on social media, particularly ‘#metoo’ allegations, it may seem prudent to include a ‘Trigger warning’ to warn people who may potentially be traumatised by reading it.  However, it is important to be careful when including a trigger warning that the accuser is not misrepresenting the allegations.

Whilst Trigger Warnings are well intentioned, it is increasingly common for people to feel they need to be conservative with their warnings and make them as broad as possible to ensure that anyone who may be upset or negatively affected by the publication is aware of its content before they read it.  This can involve providing warnings for 'sensitivities' that go beyond the subject matter of the post/blog/article.  When considering what warning should be included, the accuser should be careful not to misrepresent what the allegations actually are.

If a person is named in a ‘#metoo’ social media post, the seriousness of the allegations may vary.  In the most serious circumstances the post may accuse the person of rape or sexual assault.  In other circumstances, the allegations may relate to sexually inappropriate comments or actions in the workplace.  The risk to the accuser comes when the allegation being made relates to sexual harassment, or sexual misconduct, and they attach a ‘trigger warning’ which goes too far.

Beginning a post with ‘TRIGGER WARNING SEXUAL ASSAULT/RAPE’ may seem to an accuser like the right thing to do.  However, it is possible that this trigger warning will convey a defamatory imputation that the person who has been named is guilty of sexual assault – or rape – even if the actual intended allegations that are being made are limited to sexual harassment.

That leaves the accuser in a difficult position.  If defamation proceedings are issued, they may find themselves in a position of potentially having to prove the truth of an allegation of rape or sexual assault that they did not intend to make.  Whilst other defamation defences might be available in some limited circumstances, a defendant unable to prove the truth of a defamatory imputation they did not intend to make may be in a difficult position.

Being overly cautious with trigger warnings and overplaying the allegations out of compassion to victims can sometimes backfire - and leave the accuser exposed to defamation proceedings they won’t be able to properly defend.

Click here to see how Brett Wilson LLP specialist defamation solicitors can assist if you have been defamed or accused of defamation.