The ramifications of Me Too are being felt in an extremely un-rock ’n’ roll way — insurance. But what happens when Australia’s defamation laws stand in the way of community safety and ultimately, justice?
Sydney musician Brendan Sloan recently received a renewal notice for his musical instrument policy with Marsh Advantage Insurance. At the bottom of the covering letter, Marsh advised him that he could add additional cover to his policy, as below:
Additional & Optional Cover – Sexual Molestation Defence Endorsement
We are now able to provide an endorsement to include cover towards the Legal Fees and Defence costs that may be incurred in the event of an allegation of sexual molestation made against you. Unless this option has been selected, it will be excluded from the Policy. Please contact us via email or telephone should you wish to obtain a quote to add this option to your policy.
Sloan’s policy with Marsh Advantage Insurance covers his music gear in the event of theft or damage, even if it is left foolishly unattended in a busy pub or a car parked on the street. If Sloan had added this to his policy, it would mean he would also be covered in the event of having to engage in legal action if someone — perhaps a friend, a partner, or a member of the audience or his crew — accused him of sexually molesting them.
“I was confused to be honest,” says Sloan. “I don’t have public liability insurance so to advertise an extra like this on my property insurance seems opportunistic by Marsh. It’s hard enough for people to come forward about being sexually abused or harassed in the music industry, so knowing that musicians are being targeted to insure themselves to lawyer up in the event of someone holding them to account for their actions is worrying.”
Crikey asked Marsh to explain this addition and why it had been included as an optional extra to what is basically property insurance. Marsh provided the following statement:
“This type of cover is commonly available for professional occupations as part of a combined liability insurance policy. It is excluded in Marsh’s standard cover for musical equipment insurance but offered as an optional addition for those musicians who might contractually require it in some workplace settings. Certainly, the #MeToo movement has had an impact on many industries and insurance coverage is one area that can help professionals address the risks.”
Maurice Blackburn Lawyers partner Kim Shaw says it is highly unusual to see an insurance endorsement like this, although they may be more common in retail-type policies that cover a specific group of people who are deemed to have a particular risk profile.
Insuring against the “risk” of someone pursuing legal action against you on the grounds of sexual molestation is more common in other professions — for example, teachers, home care aides and youth group leaders.
More worryingly, Shaw says that this policy could also potentially be used to fund defamation action. Crikey put this question direct to Marsh, but was denied clarification.
“Based on the broad wording provided and in the absence of the full policy documentation,” Shaw said, “it could potentially mean that a musician is covered for legal fees to pursue a defamation case against a person who has made a sexual molestation allegation against them, in addition to any criminal prosecution or personal injury action brought against them for damages.”
This means that if a victim of sexual molestation uses social media to speak out against the musician who abused them, the musician can sue them for defamation. In the US, social media posts have been used as a way to demand accountability from abusers in a music scene, but doing the same thing in Australia will land you in court, or at least result in a nasty legal letter.
The silencing effect of defamation law on speaking out against abusers in the music industry and warning others to stay safe is insidious. As most musicians are generally not well off financially, the threat of costly legal action scares many victims and their supporters into silence.
In one recent example, a man named Andrew* operated a live music venue and studio in Sydney with a business partner, Jason*, who became physically and sexually abusive towards Andrew and others in their social circle. Andrew says Jason’s victims were persuaded by Jason and his parents not to press charges. Both Jason and Andrew have continued their respective careers in the music industry — Jason in high-profile jobs. When Jason announced a new business venture earlier this year, Andrew and another friend made posts on social media encouraging people to be wary of Jason due to his past behaviour. Although it did not explicitly name Jason, his lawyer sent Andrew a letter threatening defamation proceedings if he did not delete the posts. This was not the first time Jason had threatened defamation action towards Andrew and others.
“I was advised by people who had dealt with this before that this was a common tactic,”Andrew tells Crikey. “The idea is to create as much stress as possible in the form of legal notices and fees and threats of going to court so that the victim will crumble and retract their statements.”
“Seeking justice for sexual crimes committed against you is an extremely harrowing process. My abuser possessed high social currency and his financial situation allowed him to be litigious and jump on any accusations. These tactics resulted in me being silenced — in part due to the emotional stress involved and also my financial situation not allowing me to pursue this further. I felt manipulated by solicitors into scrubbing parts of my life from the public record.”
At any rate, the inclusion of this optional extra in Marsh Advantage Insurance’s policy was enough for Sloan to take his business elsewhere.
“I’ve chosen not to renew my cover with Marsh and this was a major contributing factor. The whole point of this kind of abuse is that it is carried out away from witnesses who could back up the victim. I don’t want to financially support a business that is prepared to go to bat for perpetrators of sexual misconduct.”
*Names have been changed to protect the identity of the people involved.
If you or someone you know is impacted by sexual assault, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au. In an emergency, call 000.