How do recent defamation cases impact press freedom?

Dr Sarah Ailwood explores what this means for sexual assault survivors in the #MeToo era

Two recent high profile defamation cases have shone a spotlight on the media's use of the truth defence in Australia.

Two recent high-profile cases against media companies in Australia have raised the profile of defamation claims and their relationship to press freedom.

Political adviser Bruce Lehrmann, who sued Network Ten, lost his case when it was brought undone by the media company's successful use of the truth defence. Lehrmann's case followed Ben Roberts-Smith's loss of his protracted defamation claim against Fairfax Media, also on the truth defence.

As the most recent in a string of defamation claims threatened or brought by high-profile men accused of perpetrating sexual violence against women, Lehrmann's failed claim on the truth defence raises questions for sexual assault survivors in the #MeToo era.

The ‘truth defence' explained

Under Australian defamation law, a defendant publisher has a complete defence for publishing a story that would otherwise be defamatory if it can prove the publication is "substantially true" on the balance of probabilities. 

In this way, the truth defence forms part of the "risk matrix" media publishers consider in deciding whether to publish a story that might attract a defamation claim.

The defence is particularly important in Australia, as it is in the United Kingdom, because there is no requirement that the plaintiff prove that a publication is false to bring a defamation claim; the burden of proving that the publication is true falls to the defendant.

In contrast, in the United States, the burden of proof falls to the plaintiff, who must prove that the publication is false as part of a defamation claim. That means that in the US, it can be generally harder for a plaintiff to make out a defamation case against the media than it is in Australia or the UK.

In the cases brought by Lehrmann and Roberts-Smith, the media publishers were successful in proving that the allegations they published about the plaintiffs were substantially true.

Although this might seem a victory for press freedom, it is important to note that arguing the truth defence depends, as always, on the availability, credibility and reliability of evidence.

In the Lehrmann and Roberts-Smith cases, the media publishers were successful because credible evidence was available to prove the substantial truth of the allegations.

The irony of these defamation actions is that, while the plaintiffs seek vindication from reputational harm, the court process and judicial findings  might ultimately be more damaging.

As Justice Lee eloquently put it in his April 15 judgement: "Having escaped the lion's den, Mr Lehrmann made the mistake of coming back for his hat."

The truth defence has been challenging in previous #MeToo cases

Since the global ignition of the #MeToo hashtag in October 2017, victim-survivors of violence, advocates, academics, journalists and publishers have decried Australian defamation law's limitations on the freedom of the press to publish stories of sexual violence, particularly where an alleged perpetrator is identified or identifiable.

Because the very subject matter of the publication — sexual violence — is notoriously difficult to prove in court, establishing a defence of substantial truth in relation to publications alleging sexual violence is likewise difficult.

It proved insurmountable, for example, in the defamation case brought by Geoffrey Rush against the publishers of the Daily Telegraph for stories alleging sexually inappropriate behaviour towards an actress.

The presiding judge in that case, Justice Michael Wigney, not only found insufficient evidence to establish the truth defence, but destroyed the credibility of the alleged victim-survivor, Eryn-Jean Norvill, in the process.

Justice Lee's finding that the allegation of sexual violence in Network Ten's interview with Brittany Higgins on The Project in February 2021 was substantially true is the first case in the #MeToo context in which a defamation claim has been successfully defended by a media publisher in relation to sexual violence reporting.

The truth defence was successful in part because of Justice Lee's trauma-informed approach to the issue of consent and the credibility of Brittany Higgins' testimony. 

He rejected many "rape myths" that are often used to doubt the testimony of victim-survivors in a powerful judgment that reflects changing social and cultural understandings of sexual violence and its traumatic impact on victim-survivors.

What about the ‘public interest' defence?

The defences available to media publishers have recently been expanded to include a "public interest" defence, which applies to publications after July 2021.

That public interest defence was introduced with the aim of rebalancing defamation law in favour of public interest reporting.

This defence requires a media publisher to establish that the publication concerns an issue of public interest and that they reasonably believed that publication is in the public interest.

In the first case to consider the defence, where former army commando Heston Russell sued the ABC in 2023, Justice Lee found that the broadcaster's journalistic practices were not rigorous enough to form a reasonable belief that publication was in the public interest.

The public interest test did not apply in the Lehrmann case because it commenced after The Project interview was broadcast. However, in considering the conduct of Network Ten and Lisa Wilkinson in publishing the interview, the judge set a similarly rigorous standard for journalists and media publishers. 

Justice Lee reflected at length on the "responsible and reasonable conduct of journalists" and evaluated decision-making by journalists and media publishers according to the Media, Entertainment and Arts Alliance Journalist Code of Ethics.

Together, these cases suggest that, before Justice Lee at least, the public interest defence will be applied with close judicial scrutiny of journalistic rigour and ethics.

Press freedom: responsibility to victim-survivors

The public interest test may increase the freedom of the press in reporting stories of sexual violence. Australia is witnessing heightened public and political attention on violence against women. Reporting on violence against women, including sexual violence, is likely to be seen as in the public interest.

Yet with greater press freedom should come greater responsibility — particularly to victim-survivors of sexual violence.

The increased press freedom of the public interest defence could also increase the risk that stories targeting male perpetrators will be published without the knowledge, involvement or agreement of the victim-survivor at their centre — as happened to Eryn-Jean Norvill.

As I have written elsewhere, the harm caused by such a violation of the privacy of a victim-survivor of violence — and the failure of Australian privacy law to prevent or remedy such a harm — must be balanced against the public interest in reporting, and an expansion of press freedom in defamation law.

Dr Sarah Ailwood is Senior Lecturer and Academic Program Director in the School of Law at the University of Wollongong. She researches and publishes in the field of feminist legal theory, both historically and in the present day. Her current research explores women's legal testimony, listening and law reform in the #MeToo era, and workplace sexual harassment law.

Originally published under Creative Commons by 360info™.

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