Accusations of sexual violence are being increasingly met with defamation actions. In cases like this, who has the most to lose?

When Justice Michael Lee handed down his 324-page judgment in the Federal Court case instituted by Bruce Lehrmann against Channel Ten and reporter Lisa Wilkinson, it was the latest action in the long-running saga concerning an incident in a Minister’s office in Parliament House five years previously.

But the judgment is a part of a growing trend of defamation trials resulting from accusations of sexual violence. What can we learn from this trial?

What had to be proved and by whom?

Brittany Higgins, the survivor of the alleged sexual assault, was not a party to this defamation case, which arose from an interview that Wilkinson conducted with her in 2021, shortly before the criminal trial of Lehrmann was due to commence in the ACT Supreme Court.

The trial was aborted because of the improper conduct of a juror and the Chief Justice determined that a new trial should not take place because of concerns for Higgins’ mental health. As a result, the allegation of rape had not been proved and Lehrmann continued to maintain his innocence.

“Anyone contemplating suing for defamation might want to think twice.”

– Emerita Professor Margaret Thornton

In the interview with Higgins, Wilkinson did not mention Lehrmann’s name as the alleged perpetrator, but he was identifiable because of the surrounding publicity. This was enough for Lehrmann to commence an action for defamation, seeking damages for harm to his reputation.

Once the defamatory harm had been made out, the burden of proof of rebuttal shifted to the defendant, Channel Ten and Lisa Wilkinson. This involved proving the substantial truth of the rape allegation.

The standard of proof to be satisfied was the civil standard, that is, on the balance of probabilities it was more likely than not that the rape occurred. This standard is lower than the criminal standard — beyond all reasonable doubt — which the Crown would have had to satisfy to find Lehrmann guilty, had the ACT trial gone ahead.

The judgment

Justice Lee engaged in a forensic dissection of the evidence from multiple witnesses, corroborated by CCTV footage, even though exactly what had occurred in the Minister’s office could only ever be known by Lehrmann and Higgins. While he was critical of the credibility of all the primary witnesses, including Wilkinson, for failing to carry out the necessary checks regarding the accuracy of sources, Justice Lee was scathing of the unreliability and mendacity of Lehrmann.

Some of the testimony of Brittany Higgins’ was also found to be unreliable, but Justice Lee recognised that she suffered from some residual trauma, which is not unusual on the part of rape victims, and he accepted that sexual intercourse had taken place. Lehrmann was found to have been recklessly indifferent as to whether Higgins had consented or not, which satisfied the ordinary test for rape on application of the balance of probabilities standard.

Sexual violence and defamation

In recent years, there has been an increase in defamation actions by men after women have reported sexual violence. This could suggest that an allegation of rape is viewed more serious than the actual assault.

Sometimes, the action has been brought against the woman herself to stifle her complaints, such as that brought by Hollywood actor, Johnny Depp, against his former wife, Amber Heard, for a piece that she wrote without naming him. The jury found that Heard had defamed Depp, and the actress had damages of US$10 million awarded against her.

Amber Heard was ordered to pay ex-husband Johnny Depp millions of dollars. Photo: BAKOUNINE/Shutterstock.com

Defamation actions are also commonly taken against the media. When Eryn Jean Norvill, a young performer, complained to her employer, the Sydney Theatre Company, of sexual harassment by Oscar-winning actor, Geoffrey Rush, details of her complaint were leaked to The Daily Telegraph. Rush sued for defamation and the newspaper relied on truth, as in the Lehrmann case, but the judge preferred Rush’s account to that of the complainant. He was awarded damages of $2.9 million, with legal costs believed to be around $6 million.

The legal costs in the Lehrmann case have been estimated to be in the vicinity of $10 million. Anyone contemplating suing for defamation might want to think twice before doing so because the action is so costly, as well as being notoriously risky.

As Justice Lee remarked in his judgment, in reference to Lehrmann pursuing a defamation action following the aborted ACT criminal trial: “having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.”

The public interest

Australian defamation law has been updated following the Lehrmann case, in relation to the defence of public interest.

The reform is designed to ensure that there are no unreasonable limits on freedom of expression, and requires the defendant (in this case, the publisher) to establish that the subject matter of the publication was in the public interest.

In view of the contemporary focus on sexual violence against women, it may well be that such a defence could be raised in conjunction with, or as an alternative to truth. This will require defendants to exercise particular care in what they publish. The flaws in Lisa Wilkinson’s journalism would probably not have protected her or Network Ten had this defence been relied upon.

This qualification also applies to individuals sending potentially defamatory emails, or posts on Twitter or other media platforms. A public interest defence might be useful in scenarios such as a book, artwork or restaurant review, but a publisher (which includes the transmitter of an email or post) needs to prove that it took appropriate steps to act reasonably and did not set out to cause serious harm to the person affected.

This has become increasingly contentious in the case of women subjected to sexual violence.

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