Guilty Until Proven Innocent: The Cost of Cancel Culture

Our generation's desire for public accountability has given rise to something unprecedented. “Cancel culture” has created a parallel justice system run by social media. This of course comes with a myriad of consequences: No presumption of innocence, no rules of evidence and no right to reply. In this piece I explore this growing tension between cancel culture and the presumption of innocence, asking whether this accountability obsession has gone too far, compromising the very principles our legal system is founded on.

John Rawls once asked us to build a society without knowing which role you will play in it. Rich, poor, powerful or powerless. You could be the victim of a crime or could be accused of one. You would choose the one that protects your innocence, even if it means sometimes letting the guilty escape.¹ This moral code has been woven into our society for decades. But a culture that rewards conviction over nuance, and virality over truth threatens to undo this thread entirely.

First, a bit of a refresher on what this principle is and where it came from. The philosophical foundations of this concept came from the infamous Blackstone’s ratio: the idea that “it is better ten guilty persons escape than that one innocent suffer”². This essentially explains for why our justice system is deliberately weighted in favour of the accused, and why our threshold for evidence is ‘beyond reasonable doubt’ rather than something lower like the balance of probabilities. The threshold needs be high when one’s freedom is at stake.

Nowadays, the rise of ‘cancel culture’ and prioritising of accountability undermines the very foundations our justice system was built on. Time and time again in the last ten years we have seen people lose careers, reputations and livelihoods based on allegations alone and without any trial or guilty verdict. The reality is, the rise of the social media trial invited a shift in our morals. When you think about it, cancelling someone off an allegation is basically saying that we, as a society, now believe the accused is ‘guilty until proven innocent.’

It is important for us to understand what we are really doing when we participate in these cancellations. The Rush v Nationwide News case shows just how much damage these allegation-based narratives can do. In 2017, the Daily Telegraph published allegations of inappropriate behaviour against Geoffrey Rush, one of Australia’s most decorated actors at the time. The reputational damage was immediate. The press ran its course of destruction without waiting for an outcome. Rush’s lawyers told the court his career was “irreparably damaged”, with the media frenzy forcing him into a self-induced house arrest.³ The Daily Telegraph enabled what Justice Wigney defined as ‘bootstrapping of the story’ through their deliberate inclusion of misleading statements about his conduct. Interestingly, the court found the allegations to be unsubstantiated, with Justice Wigney maligning the “recklessly irresponsible piece of sensationalist journalism of the worst kind.”⁴ Rush was ultimately granted almost $2.9 million in damages, one of the largest defamation payouts in Australia’s history.⁵

Although Rush was technically compensated, no amount of money can erase the monstrous cost to his image. A payout even of this quantity is still meaningless when it arrives with too little time to set the story straight. It is not bold to assume that most ordinary people do not have the time or energy to follow court outcomes. So, their view on Rush will remain stagnant, despite not having the full story. The courts did their job of delivering justice, but the court of public opinion had already adjourned. This is where the problem lies: the presumption of innocence only offers protection if people are willing to wait for the process to play out. Unfortunately, we are in 2026, an era where a binary take is formed in a single scroll, tested by nothing and reinforced by algorithms, letting our reality stray further and further from Blackstone’s vision.⁶

Rush’s trial makes the solution seem simple. We must reinstate our trust in, and only in, official legal processes to keep the presumption of innocence intact. But this argument becomes harder to sustain when that very system has historically failed those it was made to protect. After all, the public lost trust in the presumption of innocence for a reason. Allegations of sexual misconduct against Harvey Weinstein were common knowledge in Hollywood. This escalated to private warnings for female actresses and public jokes from comedians at award shows.⁷ Seth MacFarlane even joked at the 2013 Oscars that Best Supporting Actress nominees no longer had to “pretend to be attracted to Harvey Weinstein.” Despite public knowledge of his behaviour, nothing was done in the legal system.

Weinstein silenced accusers through financial settlements and non-disclosure agreements.⁸ This is where the justice system has failed its accusers. It was not the courts, but the New York Times that finally brought Weinstein to justice with an article in October 2017.⁹ After this, over eighty women broke their silence.¹⁰ Clearly, the role of the media through ‘cancellations’ is not without value. In Weinstein’s case, it achieved three decades of what legal institutions did not. But isn’t this a risk Blackstone urged us not to take?

The defenders of cancel culture can look to Bill Cosby’s case for their strongest argument. Five decades of assault. Over sixty women.¹¹ The justice system fell short for every one of these women through the prosecution’s decline to charge in 2005.¹² It is no coincidence that the allegations were brought back to light following a comedian’s viral set in 2014.¹³ Once again, the media playing the role of justice provider better than the legal system itself. When Cosby was eventually convicted four years later, the verdict was overturned on procedural grounds just three years later.¹⁴ Considering the serious shortcomings of courts in regard to punishing the rich and powerful, it is honestly not surprising and certainly understandable that the public sought to find justice elsewhere. But in this relentless pursuit for accountability, we may be sacrificing something far more important: our ability to respond.

The damage our generation is doing to the justice system is an uncomfortable conversation. For us law students, it is undeniably frustrating. After endless readings on the presumption of innocence, just to open social media and see it being entirely abandoned. I cannot simply tell everyone to stop cancelling people. I would be a hypocrite if I did. We have all, at some point regurgitated a half-formed opinion from a 15-second video just to seem informed in a group conversation. But as law students, we occupy a powerful position in this conversation. We are the ones who know the intricacies of our legal system and understand the importance of due process more than anyone. So perhaps our role here is not to resolve this issue, but to bring something to it that law school has equipped us with: our discernment. This means challenging ourselves to look at official documents and each side’s cases before forming our view. We are lucky enough to be able to (sometimes) understand convoluted legal documents. We can practice distilling legal jargon into palatable explanations for our non-law peers. Believing the victim and believing in due process do not have to be mutually exclusive. We can take allegations seriously without joining smear campaigns against someone who has not yet had the chance to present their defence. We must uphold Blackstone’s principles because that is the commitment we made as a society: risking imperfection to prevent injustice. So, before you join the next trending cancellation, ask yourself: what would you want if it were your name trending?

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[1]John Rawls, A Theory of Justice (Harvard University Press, 1971).

[2]William Blackstone, Commentaries on the Laws of England (Clarendon Press, first published 1765, 1979 ed) vol 4, 358.

[3]‘Geoffrey Rush Is “Virtually Housebound” And His Career Is “Irreparably Damaged” Oz Court Told In Defamation Case’, Deadline (online, 19 April 2018) <https://deadline.com/2018/04/geoffrey-rush-virtually-housebound-career-irreparably-damaged-hears-court-defamation-case-1202360758/>.

[4]Rush v Nationwide News Pty Limited (No 7) [2019] FCA 496.

[5]Nationwide News Pty Limited v Rush [2020] FCAFC 115.

[6]Blackstone (n 2).

[7]‘Harvey Weinstein Sexual Abuse Cases’, Wikipedia (Web Page) <https://en.wikipedia.org/wiki/Harvey_Weinstein_sexual_abuse_cases>; See also NPR, ‘Where the #MeToo Movement Stands, 5 Years After Harvey Weinstein Allegations’, NPR (online, 28 October 2022).

[8]Jodi Kantor and Megan Twohey, ‘Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades’, The New York Times (online, 5 October 2017).

[9]Kantor and Twohey (n 8); Ronan Farrow, ‘From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories’, The New Yorker (online, 10 October 2017).

[10]NPR (n 7).

[11]‘Bill Cosby Sexual Assault Cases’, Wikipedia (Web Page) <https://en.wikipedia.org/wiki/Bill_Cosby_sexual_assault_cases>.

[12]‘Why Bill Cosby’s Conviction Was Overturned’, PBS NewsHour (online, 30 June 2021).

[13]Ibid; See also ‘Bill Cosby Charges: Timeline of Case Leading Up to Vacated Conviction’, FOX 29 Philadelphia (online, 30 June 2021).

[14]PBS NewsHour (n 12).