In connection with a 2021 interview featuring Brittany Higgins, Mr Lehrmann has filed a defamation lawsuit against Network Ten and journalist Lisa Wilkinson. Mr Lehrmann claims that he is accused of raping Ms Higgins during the televised discussion. In this article, Litigation Senior Associate Lachlan Boyle and Law Clerk Riley Hickey delve into the intricacies of defamation, the nuances of public interest defence, qualified privilege, and the critical aspect of truth in the ongoing trial. Unravel this high-profile case’s legal complexities as we break down the key elements at play.

The Lehrmann Defamation Trial

Mr Lehrmann initially instigated an action in defamation against Network Ten and Ms Lisa Wilkinson over an episode of The Project that aired an interview with Ms Brittany Higgins in February 2021, during which the interview conveyed imputations that she had been raped in a Parliament House office two years prior. While Ms Higgins never expressly identified Mr Lehrmann by name, the circumstances and details included within the interview gave rise to his identification. Mr Lehrman has maintained his innocence throughout the criminal trial and ultimately pleaded not guilty to one charge of sexual intercourse without consent prior to prosecutors dropping the trial due to juror misconduct.

Network Ten and Ms Wilkinson relied on the defence of truth and the qualified privilege in defending the action. They argued that the imputation that Mr Lehrmann raped Ms Higgins and her allegations against him are substantially accurate, to which the standard of proof in civil matters such as defamation proceedings (as opposed to criminal) is vastly different. In the context of the qualified privilege defence, Network Ten and Ms Wilkinson argued that the program was in the public interest, especially in circumstances of Ms Lehrmann’s position as a former Liberal staffer and notable public figure, and that they otherwise acted reasonably in broadcasting the publication.

Regardless, Australians eagerly await the outcome of the trial, which concluded in late December, as Justice Lee has reserved judgment in the matter, which will be handed down sometime this year.

Defamation Overview

A cause of action in defamation may be instigated where material is communicated to the public at large, which causes serious harm to the reputation of an individual, where the allegations against them are otherwise untrue. In the context of Mr Lehrmann’s case, he needed to establish a series of elements that indicate that the episode of The Project conveyed defamatory imputations, including:

1. the matter complained of bore a defamatory meaning (whether directly or indirectly);
2. the matter explicitly and specifically identified or concerned the complainant;
3. the matter was published to at least one party; and
4. the publication of defamatory matter has caused, or is likely to cause, serious harm to the person’s reputation.

A national framework for model defamation provisions was enacted in 2005, with each Australian State and Territory enacting its corresponding implementation. Considerable amendments through a series of staged developments have intended to modernise the cause of action to align with social media and internet usage, marked by the landmark High Court decisions of Fairfax Media Publications Pty Ltd v Voller & ors [2021] HCA 27 (‘Fairfax v Voller’) and Google LLC v Defteros [2022] HCA 27.

The current landscape in defamation ensures consistency across Australian States and Territories while incorporating many significant amendments to the action itself. Among these include additions and revisions to the current list of nine defences that defendants may have available to them in an action in defamation.  In that regard, as a plaintiff must prove the publication of the alleged defamatory material, a defendant can rely upon defences that rebut and refute the publication. A snapshot of the notable defences relevant to the Lehrmann defamation trial will be explained below.

*New* Public Interest Defence

The public interest defence recently introduced in section 29A of the Uniform Defamation Acts has been the subject of significant consideration in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223). It’s introduction was primarily intended to remedy the failure of the existing defences to protect media reporting from actions in defamation legitimately. A few key takes away from that case, in the context of the operation of the defence, is that the defence emphasises the honest and reasonable belief in the truth of a publication (as opposed to the actual truth), a holistic interpretation as to whether the reporting was reasonable, and public interest journalism must otherwise take adequate measures to ensure they keep apprised and inform themselves of the matters that may would necessarily be relevant to that believe. All in all, if their belief in the legitimacy of the publication is reasonable, with substantiated evidence confirming that effect, the publication will likely be deemed to be within the public interest.

Qualified Privilege

There is a defence of qualified privilege for the publication of defamatory material provided that the defendant proves that the intended audience had an interest in the information and that the conduct of the defendant publishing the matter is reasonable in the circumstances. However, such a defence may be lost if the court determines that the defendant was acting with malice in making the publication.

To establish a defence of qualified privilege, the defendant must satisfy the court that the occasion was privileged – where the relationship between the publisher and publishee ultimately gave rise to an ethical or social duty to broadcast the information to the world at large.

In the context of the Lehrmann defamation trial, Network Ten and Ms Wilkinson argued that the program was in the public interest, especially in circumstances of Ms Lehrmann’s position as a former Liberal staffer and notable public figure, and that they otherwise acted reasonably in broadcasting the publication, in accordance with the elements necessary to substantiate the defence of qualified privilege.

Defence of justification (or the ‘truth’ defence)

The defence of truth is often used interchangeably to the defence of justification. This defence arises provided that the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. In practice, this means that the defendant must prove imputations flowing from a statement of fact is true, or whether a publication flowing from a statement of opinion is accurate. Notably, the defendant is not obligated to prove the literal truth of the material – only that there is substantial truth to the material facts. Quantifying the substantial truth of the material facts is contemplated in light of the standard of an ordinary person.

In the context of the Lehrmann defamation trial, allegations of unsatisfactory evidence on Mr Lehrmann’s behalf, and Ms Higgins’ fundamentally dishonest character as a witness, may lead to a determination that the court cannot conclude as to the events on the night in which the alleged rape was said to have occurred.  The flow-on effect from such a finding would ultimately result in the failure of the defence of truth.

RAMSDEN LAWYERS – HOW WE CAN HELP

Whether you’ve been affected by defamation or are concerned about potential liability for a previous publication, our Litigation and Dispute Resolution Division has considerable expertise in defamation actions for both claimants and defendants. We are happy to arrange an obligation-free initial consultation to assist you in navigating the relevant legislation for your circumstances.

The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice.  Specific advice about your circumstances should be sought.