It’s been a huge year for defamation, and its only June.
With approximately 23,000 viewers tuning in to witness Justice Michael Lee’s decision in Lehrmann v Network Ten, which sparked headline stories across all major newspapers, Australia has clearly switched on to defamation litigation.
The Lehrmann decision is among a series of four major defamation decisions in Australia over the past 12 months, following the landmark decisions for proceedings launched by Ben Roberts-Smith and Heston Russell. In a fourth key case, BlackBay Lawyers acted for the defendant in precedential defamation proceedings brought against a victim who complained to NSW police about stalking and harassment. BlackBay Lawyers have reflected on the journey leading to this moment and the future direction of defamation litigation.
How did we get here?
Australia long held a reputation for favouring defamation plaintiffs, earning the title of ‘world defamation capital’ for the period 2014-2018 when we recorded twice as many defamation law claims as the United Kingdom, despite having well under half its population. That means Australia heard 10 times as many defamation law issues than the UK on a per-capita basis.
In 2020, Australia sought to mend its own reputation in this area by introducing a sweep of reforms to the Uniform Defamation Laws to tip the balance towards defendants.
The Stage 1 Reforms, introduced from 1 July 2020, included a new “serious harm” threshold for plaintiffs, mandatory Concerns Notices, and new defences relating to matters of public interest and matters published in academic or scientific journals.
Notably, the new public interest defence intended to remedy failures of existing defences to protect media organisations in reporting news and current events.
1 July 2023: Ben Roberts Smith v Fairfax Media & Nine
Ben Roberts-Smith was Australia’s most decorated living soldier, who rose to fame in 2011 after being awarded the highest military honour, the Victoria Cross for Australia.
His reputation took a turn when in 2018, Nine mastheads the Age, Sydney Morning Herald and Canberra times published articles alleging he was involved in war crimes while on deployment in Afghanistan between 2009 and 2012, breaching moral and legal rules of war and disgracing Australia in the process. Roberts-Smith denied the allegations and sued Nine for defamation, who in turn pled the defence of substantial truth found in s 25 of the Uniform Defamation Laws.
After 110 days of civil proceedings from mid-2021 to July 2022, Justice Anthony Besanko handed down his decision in favour of Nine on 1 July 2023.
The decision was based on Justice Besanko’s finding that the most serious imputations concerning the unlawful killing of unarmed Afghan prisoners, were, on the balance of probabilities, substantially true. The remaining imputations, while unproven in their truth, attracted the defence of ‘contextual truth’ as those found to be substantially true were ‘so serious that the applicant has no reputation capable of being further harmed’.
Roberts-Smith’s is appealing the decision, with his counsel Bret Walker, SC arguing Besanko did not have sufficient evidence to justify the seriousness of his findings. This appeal highlights the differing standards of proof for civil and criminal proceedings, and the ramifications of bringing a civil claim for criminal allegations.
Hearing a criminal allegation such as murder or war crimes at the lower civil standard of ‘the balance of probabilities’ means such a grave finding can be made without the certainty required by the criminal standard of proof. However, a criminal finding of guilt cannot be inferred to the requisite standard of beyond reasonable doubt from the civil decision, and in fact, could be grounds to argue a fair criminal trial is no longer possible as prosecutors may benefit from the civil findings.
As the publications were published in 2018, the legislation pre-dates the Stage 1 Reforms and the introduction of the public interest defence in s 29A. If that defence were available Nine would have very likely relied upon it.
At the time of Besanko’s judgment, the public interest defence had not yet been tested in a defamation trial.
Australia did not have long to wait.
October 2023: Russell v the ABC
Heston Russell was another former special forces soldier who found himself in a reputational hotbed after being linked to war crimes in news publications.
The ABC had made allegations in news reports which included soldiers under Russell’s command making a ‘deliberate decision to break rules of war’, and that Russell left ‘fire and bodies’ in the wake of his service in Afghanistan.
The ABC sought to rely on the new public interest defence granting Justice Michael Lee the opportunity to provide valuable commentary and insight on its application.
For context, per s 29A of the Uniform Defamation Laws the public interest defence is made out if the defendant can prove:
a) The matter concerns an issue of public interest; and
b) the defendant reasonably believed the publication of the matter was in the public interest.
Justice Lee clarified the separation of these tests, and confirmed that ‘the issue of public interest’ is to be determined objectively. Justice Lee also determined that the second limb of the test, namely, whether ‘the defendant reasonably believed’ in the public interest of the publication is subjective enquiry for the Court.
The ABC succeeded in establishing the objective public interest in the matter and their subjective belief in the public interest of the publication. The defence however failed on the element of reasonableness of their belief.
Justice Lee was critical of the article’s drafting and the urgency of its publication, finding insufficient steps were taken by the ABC to distinguish what was proven to be true and what was a matter of suspicion. The ABC also had failed to take steps to procure and consider a response from Russell.
For defendants seeking to rely on the public interest defence, a key takeaway is the importance of documenting the steps taken to ensure a publication is ‘reasonable,’ such as diligent fact checking, avoiding drawing conclusions, and ensuring the other side is given an opportunity for response.
December 2023: Siobhan Lamb v Sherman [2023] QCA 258
BlackBay Lawyers is proud to have played a key role in a landmark defamation case which ensured victims are protected from action in defamation when complaining to police.
Last year, BlackBay Lawyers represented Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb, the appellant in defamation proceedings in the Queensland Court of Appeal (Bill Karageozis as trustee for the bankrupt estate of Siobhan Lamb v Sherman [2023] QCA 258).
In 2022, Siobhan Lamb, the defendant to defamation proceedings was ordered to pay $10,000 in damages and more than $500,000 in legal costs after the Court found she defamed her former lover by reporting his aggressive conduct to police. The first round of proceedings ultimately bankrupted Ms Lamb sending a dangerous message to the community that victims who make complaints to police risk losing it all.
BlackBay Lawyers successfully appealed the decision and on 15 December 2023, the Court of Appeal overturned the decision of the lower court and found in favour of Ms Lamb ordering the plaintiff pay her costs.
The case was significant because their Honours were asked to consider the circumstances in which a complaint or information provided to police will attract the defence of qualified privilege.
The primary judge had found that one of the publications sued on by Mr Sherman (a complaint by Ms Lamb to a police officer about Mr Sherman’s conduct towards her, which included unsolicited phone calls and text messages, interfering with her employment, and threatening to interfere with her university admission unless she responded to his calls and text messages) did not attract the defence of qualified privilege. This was despite numerous authorities having established that a complaint to a police officer is a quintessential occasion of qualified privilege.
The Court of Appeal found that Ms Lamb’s complaint was protected by common law qualified privilege and that she had not been malicious with the result that the trial result was overturned and costs were ordered in her favour.
From 1 July 2024, in some Australian jurisdictions, complaints to police will be covered by absolute privilege which will give them even greater protection: see Defamation Act 2005 (NSW), s 27(2)(b1).
April 2024: Lehrmann v Network Ten
‘having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat’
This concise line from Justice Lee resonated with many lawyers, encapsulating the risks plaintiffs may face in defamation proceedings that involves the civil standard of proof.
As we saw in Roberts-Smith, Lehrmann was found to have engaged in egregious conduct, in this case rape, in what has been described as a ‘quasi-criminal trial’ by making that decision on the civil standard of proof, the balance of probabilities, rather than the criminal standard of beyond reasonable doubt.
This was a success of the defendant’s substantial truth defence for the allegation of rape, however the defendants Network Ten and Ms Lisa Wilkinson sought also to rely on the statutory defence of qualified privilege, which was not successful, and attracted criticism from Justice Lee for their reporting of the publications.
As the publications of concern in these proceedings too pre-dated the Stage 1 Reforms, and the introduction of the public interest defence in s 29A. Justice Lee referred to his consideration of s 29A in the Russell proceeding in determining the question of ‘reasonableness’ which too is encapsulated in s 30.
The defence of qualified privilege requires the defendant to prove the intended audience of a publication had an interest in the information, and that their conduct in publishing the matter was reasonable in the circumstances. The qualified privilege defence however differs from s29A, as it relies on a finding that the occasion was ‘privileged’ and thus gives rise to an ethical or social duty to publish the information. To support their defence, Mr Lehrmann’s position as a former Liberal staffer and that parliament engaged in a ‘cover-up’ of Ms Higgins rape were raised.
Justice Lee criticised the evidence from Brittany Higgins concerning the alleged cover-up and the actions of Ten, Wilkinson and The Project producers in consideration of the ‘reasonableness’ of the publications. He found their actions in establishing the ‘truth’ of the cover-up allegations were insufficient, such as their failure to obtain the view of Lehrmann. The defence of qualified privilege therefore was not made out.
Evocative of the contextual truth defence fallback seen in Roberts-Smith’s case, Justice Lee found that despite the rape allegation being a ‘minor theme’ of The Project’s story compared to the ‘major motif’ of an alleged cover-up, the latter element of the story was inconsequential for the purposes of Lehrmann’s defamation claim, which ultimately was successfully defended.
Whether Justice Lee’s decision marks the end of this proceeding may still be determined, with Lehrmann indicating an intention to appeal the decision.
A new reputation for defamation
Australia’s reputation for defamation law is clearly shifting.
Since the Stage 1 reforms in 2020, defamation claims filed in the Federal Court has fallen year-on-year. We may well see this number continue to drop, with Stage 2 reforms set to be introduced in July 2024. Stage 2 will focus on ‘digital matters’ in response to the 2021 High Court decision in Voller that media companies and social media page owners can be held liable for defamatory comments left by members of the public.
Prior to the reforms, plaintiffs benefitted from the relative ease of establishing defamation and defendants faced limited opportunity to raise defences. We now see that in Australia, plaintiffs can and do lose defamation proceedings, and it is not only difficult to use defamation law to repair your reputation, but the cause of action can have the opposite effect.
ABOUT THE AUTHOR
Sally Westlake is a commercial generalist with an impressive record across litigation, transactional and advisory matters.
She has niche expertise in copyright gained from her in-house career at APRA AMCOS and is experienced in the negotiation and drafting of agreements. Since moving to private practice she’s focused on commercial disputes and litigation, having appeared in the District and Supreme Courts of New South Wales, advised high-profile individuals in defamation matters, directors in insolvency litigation, and assisted the defence of a large corporation in a class action lawsuit.
Empathetic yet competitively driven, she is a fierce advocate for her clients and is committed to achieving their best outcomes.
