Lehrmann case exposes flaws in Australia’s media coverage and defamation practices

There is an urgent need to reform media practices and defamation law in Australia but is there a political will to achieve this?

The Bruce Lehrmann defamation case provides a stark illustration of the complexities and challenges inherent in media coverage of legal affairs, particularly in the case of high-profile and sensitive issues such as sexual assault allegations. This case, which revolved around accusations made by Brittany Higgins that she was raped by Lehrmann in a parliamentary office in Canberra—an allegation Lehrmann denied but was never acquitted of in the 2022 criminal trial due to jury misconduct—culminated in a civil defamation suit filed by Lehrmann against Network 10 after their coverage of the allegations.

This lawsuit and its resolution highlight significant issues concerning the roles and responsibilities of the media in reporting on such cases. Justice Michael Lee’s judgment against Lehrmann not only dismissed the defamation claims but also declared that, on the balance of probabilities, that Lehrmann raped Higgins. This finding underscores a critical divergence between criminal and civil law standards of proof—‘beyond reasonable doubt’ versus ‘balance of probabilities’, respectively, and it raises profound questions about the portrayal of truth in media and legal contexts, where the former often seeks a narrative clarity that the latter, bound by stringent evidentiary standards and procedural constraints, cannot always provide. But the fact remains: Bruce Lehrmann raped Brittany Higgins, and despite whatever Lehrmann and his supporters in the conservative media wish to believe, this is what Justice Lee asserted in a court of law.

The judgment also speaks volumes about the potential misuse of defamation law as a tool to manage reputations and manipulate public perception. Lehrmann’s decision to pursue defamation charges, despite the complexities and risks involved, was a strategic misstep that ultimately led to a more damaging public rebuke. Media outlets, such as Network 10, operate under the constant threat of defamation suits, which can influence how they report on sensitive issues. The case exemplifies the balance the mainstream media must maintain between aggressive reporting and the legal risks of defamation.

The reactions from various media commentators, as highlighted in the initial statements, also reflect a broader skepticism about the motives behind such lawsuits and their implications for public discourse, which point to a growing public awareness and criticism of how defamation laws can be used to suppress legitimate journalistic investigation and reporting. This situation is particularly precarious in Australia, where defamation laws are notoriously plaintiff-friendly, often placing an undue burden on the media to prove the truth of their statements to avoid liability.

In light of these challenges, the Lehrmann case acts as a catalyst for a broader discussion on the need for media reform in Australia. The media’s role in shaping public understanding and discourse is critical, and its capacity to do so responsibly and ethically must be supported by legal frameworks that do not unduly stifle journalistic freedom but also promote good behaviours from the mainstream media. Reforming defamation laws to better balance the right to reputation with the public interest in freedom of expression and press would also be a significant step forward. This would not only help protect media outlets from vexatious litigation but also ensure that they can continue to play their crucial role in a democratic society by informing the public and holding the powerful to account.

Such reforms could include the introduction of public interest defences, caps on damages, or stricter requirements for proving actual malice in cases involving public figures. These changes would help realign Australia’s defamation laws with international human rights standards, fostering a more vibrant, fearless, and accountable media landscape.

A call for reform: Systemic failures in Australia’s mainstream media

Mainstream media’s role in influencing public perception and justice can sometimes cross ethical boundaries, as evidenced by actions such as Seven West Media’s payment for sensational stories—in the case of Lehrmann, this also involved supply of drugs and sex workers. Such practices not only compromise journalistic integrity but also raise questions about the accountability mechanisms currently in place to govern media conduct. The involvement of prominent media entities in behaviour that perverts the course of justice points to a systemic failure, not just isolated incidents of journalistic lapse.

This brings us to a critical crossroad: the necessity for a Royal Commission into mainstream media, which has been necessary and requested by the public for some time, and the Lehrmann trial provides even more evidence for this. The Australian media industry, much like any other sector with significant public influence, must be subjected to rigorous scrutiny and reevaluation, and the call for a Royal Commission is about ensuring that media outlets operate within a framework that upholds journalistic ethics and public trust and such an inquiry would examine the extent of media malpractice and propose structural reforms to mitigate these issues.

There’s also a pressing need to reassess the criteria and conditions under which media licenses are granted and maintained in Australia. The fact that major media players like Kerry Stokes and the Murdoch family retain their licenses despite recurring controversies suggests a gap in the regulatory framework governing media operations. Why have they not been stripped of their licenses, despite their repeated failures and constant interference in the legal system and influence within politics? This gap allows media owners and executives to hold disproportionate influence over public discourse, often at the expense of fairness and accuracy.

The media’s dwindling viewership and engagement with traditional forms of news, as highlighted by declining newspaper sales and television ratings, reflects a broader shift in consumer trust and habits. This “death spiral” of traditional media consumption and the end of the advertising “rivers of gold” underscores the urgency for the industry to adapt and reform. The transition towards digital news and the concentration of news consumption around weekends signal changing consumer preferences that the industry must accommodate to stay relevant.

In addressing these challenges, comprehensive media reform in Australia should not only focus on punitive measures but also on fostering a more transparent, accountable, and ethical media landscape, which could also include: implementing clearer regulations and standards that define and enforce ethical journalism; establishing stronger oversight bodies capable of independent and effective action against media malpractice; encouraging media literacy among the public to enable more discerning consumption of news; and promoting diversity in media ownership to reduce the concentration of media power that can lead to bias and manipulation of information.

Such reforms are essential but is there a political will to implement them? Based on what we’ve seen from governments of all persuasions over the past 50 years or so, the answer is a resounding “no”.

Defamation law also needs to be significantly reformed

The paradoxical outcomes of recent high-profile defamation cases in Australia, where plaintiffs often emerge with reputations more tarnished than before, underscore the urgent need for reform in both media practices and defamation laws. The cases of Ben Roberts-Smith, Lehrmann, and the future case involving Senator Linda Reynolds exemplify the risky nature of defamation litigation, where efforts to salvage a public image instead lead to further public and legal scrutiny, often resulting in more significant reputational damage.

Defamation litigation, in its current state, seems to offer a punitive process rather than a path to vindication, although Lehrmann’s defeat in his case did provide belated vindication for Brittany Higgins. This reflects a broader issue with the legal framework surrounding defamation in Australia—it is not only punitive but also often fails to accommodate the complexities of proving truth and intent in the digital age. The legal battles fought by figures like former Attorney–General Christian Porter and the actor Craig McLachlan highlight how defamation suits can extend the public and personal trauma of the victims involved in the case, with questionable benefits in terms of justice or reputational management.

These high-profile cases also reveal a concerning trend: individuals retreating from public life or even relocating as a consequence of the overwhelming negative publicity and social repercussions stemming from their legal battles, as was the case with Higgins, who has relocated to France, even though she was not the one who brought on this case. This phenomenon points to a deeper societal issue where the court of public opinion and the legal system intersect to create outcomes that can be disproportionate and destructive.

Reforms—if they are to achieve a better balance for all parties—must address several key areas, including revision of defamation standards, promotion of pre-litigation mediation, caps on damages payable, and greater support for witnesses, especially in cases that involve sexual assault and rape.

The necessity of these reforms becomes even more pressing considering the evolving role of media in society. As traditional media struggles with credibility and the rise of digital platforms transforms how information is consumed, the legal frameworks governing defamation must adapt. Without such reforms, the media and individuals may continue to engage in legal battles that serve no constructive purpose, potentially stifling free speech and journalistic integrity.

Ultimately, defamation reform in Australia should aim not only to protect individuals from undue harm but also to ensure that the media can fulfill its role with a democratic society without fear of oppressive litigation. By realigning defamation laws with contemporary values and technological realities, Australia can better protect both individual dignity and public discourse.