Lehrmann v Network Ten Pty Limited [2024] FCA 369
On 15 April 2024, Justice Lee handed down his judgment in the infamous Bruce Lehrmann defamation case. It is in this case that Mr Lehrmann has been found (on the balance of probabilities) to have raped Brittany Higgins in then-defence minister Linda Reynold’s office in 2019.
Defence of Truth
In 2022, Mr Lehrmann escaped criminal conviction after an inconclusive criminal trial ended due to juror misconduct. In early 2023, however, he elected to sue Network Ten and journalist Lisa Wilkinson for defamation over a story that aired on The Project in February 2021. In doing so, Mr Lehrmann accepted that Network Ten could run the defence of truth and that it would be open to Justice Lee to make the finding that Mr Lehrmann did in fact rape Ms Higgins without reaching “a level of certainty indispensable to criminal liability” (that being, beyond reasonable doubt).
“Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat”
As Justice Lee remarked, Network Ten “have not won because I can exclude all other possibilities as to what happened, but because they have proven that such possibilities that are open on the evidence, both individually and collectively, are unlikely; and further because I am satisfied that the evidence provides an appropriate basis upon which to reach a conclusion”.
As with the Ben Roberts-Smith decision, it serves as a cautionary reminder to potential applicants to consider the risks of pursuing defamation litigation with respect to imputations of criminal acts given that, unlike criminal proceedings, the court will only need to be satisfied on the balance of probabilities.
Defence of Qualified Privilege
Australia’s uniform defamation law provides a statutory defence of qualified privilege, which provides a defence in circumstances where:
(a) the recipient has an interest or apparent interest in having information on some subject, and
(b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and
(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.
In this instance, Justice Lee was critical of Network Ten and Ms Wilkinson in his judgment and found that the respondents had not made out a qualified privilege defence pursuant to section 30 of the Defamation Act 2005 (2005).
Justice Lee spoke of the counterbalance to be achieved between freedom of media and the need for media organisations to make reasonable attempts to verify and consider the implications of those stories:
“The publication of accusations of corrupt conduct in putting up roadblocks and forcing a rape victim to choose between her career and justice won the Project team, like Ms Maiden, a glittering prize; but when the accusation is examined properly, it was supposition without reasonable foundation in verifiable fact; its dissemination caused a brume of confusion, and did much collateral damage – including to the fair and orderly progress of the underlying allegation of sexual assault through the criminal justice system.”
Importantly, Justice Lee criticised Mr Llewellyn (a producer for the Project) and Ms Wilkinson for “start[ing] from the premise that what Ms Higgins said about her allegations was necessarily true” and that “[they] had indicated their willingness to assist in the political use of the allegations”.
To make out the defence, Channel Ten were required to demonstrate that its conduct in publishing the defamatory matter was reasonable, noting that the more serious the matter conveyed, the more onerous the obligation cast upon the publisher to ensure that its conduct in relation to conveying the meaning was reasonable.
In considering the available evidence, Justice Lee found that:
“Project team had strong indications of the unreliability of their main source, particularly as to how she lost material on her phone and selected material survived; her explanations were implausible and rather than this being a flashing warning light, Mr Llewellyn’s instinct was to avoid “unnecessary doubt” and was not even followed up”
“As to the alleged cover up of the rape allegations: Despite this caution, and without this detail, the serious allegation of a cover-up was immediately accepted as being inherently credible, resulting in a want of reasonable scrutiny as to her general credibility, which was directly relevant to assessing the cogency of the allegation of rape. Rather the approach of Ms Wilkinson and Mr Llewellyn was to encourage the cogent articulation of an obstruction narrative”
“Mr Llewellyn and Ms Wilkinson indicated their willingness to assist in the political use of the allegations as Ms Higgins and Mr Sharaz [Ms Higgins’ partner] intended.”
Further, Network Ten had unreasonably failed to appropriately investigate the timeline presented by Higgins and made inadequate attempts to contact Mr Lehrmann so that he may respond to Ms Higgins’ statements.
Key takeaways
The decision emphasises the need for media organisations to act reasonably prior to publication, including by ensuring that:
it exercises sufficient care to ensure that proper enquiries are made;
checks are made on the accuracy of sources;
it considers whether any conclusions drawn follow logically, fairly and reasonably from the information obtained;
the manner and extent of publication does not exceed what is reasonable; and
each imputation conveyed is relevant to the subject matter about which information is being conveyed.
This insight was written by Orestis Gambranis, Lawyer in our Dispute Resolution team.
For further information relating to defamation law, please contact Director Natalie Abela in our Dispute Resolution team on 08 8228 1149 or at nabela@cowellclarke.com.au.
This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice. You should not act upon the information contained in this publication without obtaining specific professional legal advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.