A loud Phew! echoed yesterday afternoon across newsrooms, broadcast studios, and the lone desks of journalists who work at home.
I used to say that there is an almost irrebuttable presumption of law and fact in defamation: media loses. But with successful truth defences yesterday in Lehrmann (rape) closely following Roberts-Smith (murder), is the tide turning for public-interest journalism and freedom of speech?
We will come back to that. But more importantly in this five-year Lehrmann-Higgins “omnishambles” (to quote Justice Michael Lee), the true side show has been what everyone thought was the main event: did Bruce Lehrmann rape Brittany Higgins?
Lee has answered Yes, on the civil burden of proof and rejected Lehrmann’s defamation damages claim. But in the broad brush of the public interest, that was not the point.
The point was not whether the allegation of rape was true or not, but how the allegation was dealt with by the people and organisations who work in Parliament House, the heart of Australian democracy. And how the failure to deal with the allegation seriously and promptly exemplified a toxic culture against women – staffers, MPs and prospective MPs – which continues to have profound effect on Australian politics today.
And equally important is how the law deals with the publication of matters of public interest – in this case the treatment of women in Parliament House and in politics generally – when they happen to make allegations against individuals on the sideline.
The story about the treatment of women has had huge ramifications. Whereas the corporate world has moved forward with the treatment of women in the past 10 years, the conservative side of Australia politics has doubled down. It was a major cause the Coalition’s 2022 loss with a score of seats being lost to women, mainly to “teal” candidates in the inner city. And it remains a festering sap on the strength of a key element in democracy: the Opposition.
But as so often happens in the coverage of major public-interest stories, some individuals get defamed. And the law puts a mighty onus on publishers to defend their publication.
The impugned Ten The Project program was about the treatment of women, not about Lehrmann. Lehrmann was not even named. But the judge said he was identifiable and that the program made the defamatory imputation that he raped Brittany Higgins.
To defend that, Ten had to prove that he raped her, on the civil standard of proof. It was a fraught and expensive exercise, and Ten will never get its costs back.
Moreover, truth in defamation is far more onerous than any other area of the law. In professional-medical-negligence law, for example, the plaintiff (not the defendant) has the burden of proof. The plaintiff has to prove that the medical practitioner was negligent and that the negligence caused the injury.
It is not good enough for the patient to say, “I went in for a cataract operation and came out blind. Pay up.” No, they have to prove that the surgeon was negligent, or failed to warn of the possible risks.” In defamation the plaintiff has little burden.
Notice, with most areas of law the emphasis is on the conduct of the professional defendant. With some exceptions, that is not the case with defamation and journalists. It would not matter how meticulous, diligent and thorough a journalist is, a publisher still has to prove the elusive truth.
If the law concentrated on the conduct of the journalists and their editorial overseers, rather than the insistence on truth, we would be better off as a society. Journalists could not escape accountability by saying, “We were caught on a legal technicality.”
Malefactors could not hide behind silence and threats to sue when asked by journalists for comment. Publishers would not be so easily intimidated into silence. The practice of journalism would improve if the law concentrated on the professional conduct of journalists: honesty; absence of bias; getting all relevant views; not paying for content and so on.
Indeed, Justice Lee himself said of the Media Alliance’s code of ethics that is it not rocket science. It’s as basic as “not shoplifting from Woolworths”.
Whereas, searching for the truth clearly is rocket science, as the length and complexity of Justice Lee’s judgment attests.
So, is the tide turning for publishers? On several fronts, yes. I am sure judges meticulously apply the law as it is to the evidence before them, but there is a climatic change.
True, journalists and the media are thought of by many as sensation-seeking scum. Nonetheless, there is a growing recognition of the importance of the free press as a bulwark against the rise of authoritarianism worldwide and as a mechanism for ensuring our democracy works well by turning the spotlight on corruption, maladministration, waste and so on.
Too often it is only the spotlight of the media that weeds these things out while the proper enforcing organisations sit on their hands – bad banks; child sexual abuse; Indigenous living conditions; immigration rorts; marginal-seat rorts; cruelty to refugees; the list goes on.
In covering those things, sometimes people referred to put out their hand for some defamation damages, even if they are part of the bad behaviour.
Media uncover a lot of bad things and courts might be becoming a little wary of getting egg on their faces by handing out big damages awards to plaintiffs who turn out later to be richly undeserving or whose conduct is later proven to be bad or criminal. It happens. Fairly often.
Also, a couple of big defamation wins with bankruptcy-threatening costs orders might act as a deterrent against potential plaintiffs who imagine – like Lehrmann presumably did – that there is an easy pot of gold at the end of the defamation rainbow.
Another bright light is a new public-interest defence (which came into force after the Lehrmann publication). It concentrates on the reasonableness of the publisher’s behaviour in publishing matters of public interest, rather than demanding proof of the truth.
There are precious few cases so far. In one (before Justice Lee) the media lost because the journalists were held to have had an ulterior motive of defending their investigative credentials and because they did not put the allegations fairly to the plaintiff before publication.
Ultimately, that sort of legal inquiry will improve journalistic practice far more than the prurient inquiry and findings into what exactly happened in the pre-dawn of a March day in 2019 in an office in the labyrinth of Parliament House.
Crispin Hull
This article first appeared in The Canberra Times and other Australian media on 15-16 August 2024.