If Bruce Lehrmann proceeds with defamation action, how would it differ from the aborted criminal case?

<span>Photograph: Mick Tsikas/AAP</span>
Photograph: Mick Tsikas/AAP

Less than a week after criminal charges against him were dropped, Bruce Lehrmann now reportedly has his sights set on a series of possible defamation actions against media outlets and prominent personalities, including Network Ten, the ABC and Lisa Wilkinson.

The differences between the recently aborted criminal case, and the foreshadowed defamation case, are vast and significant, but I’ll attempt to summarise some of them in the next 800 words.

Related: Integrity watchdog to examine allegations of police misconduct during Bruce Lehrmann case

Perhaps most critically, Lehrmann would not be entitled to the right to silence in his defamation case – a right he exercised as the accused in the criminal case. In defamation cases, the plaintiff must give evidence, at least if they seek damages and vindication for the harm alleged to have been caused to their reputation. If the defendants seek to prove the truth of the imputations arising from their publications, Lehrmann would, in all likelihood, need to give detailed evidence in order to defeat the truth defence, including about what happened on the night on which it was alleged (and about which he consistently and vehemently denies) that he raped Brittany Higgins in Parliament House. By taking the witness stand, he would inevitably be subject to extensive cross-examination by a barrister acting for the defendants about these matters.

In the criminal case, the prosecutors were required to satisfy a jury of 12 people that the allegations were true beyond reasonable doubt. Conversely, if the defendants in the defamation case pleaded a truth defence, they would only need to prove the allegations to be substantially true on the balance of probabilities – a lower threshold than the criminal standard. If the recent history of defamation cases is anything to go by, Lehrmann is likely to commence defamation proceedings in the federal court, where his case will be heard and determined by a judge of the court, rather than having some of the factual aspects of the case determined by a jury. The prospects of the defendants pleading a truth defence in any defamation case increased significantly after Higgins confirmed that she would be prepared to be a witness in support of any truth defence mounted by defendants in a defamation case.

While Australia’s defamation laws are notoriously slanted in favour of plaintiffs, such that Sydney has been commonly coined the defamation capital of the world, Lehrmann would need to overcome a number of significant obstacles to open the door to a defamation case.

First, Lehrmann would need to establish that he was identified in the publications in respect of which he is suing. In a large majority of defamation cases, identification is a non-issue because the plaintiff is typically named. But Lehrmann was not named when Higgins’ allegations were first aired by Lisa Wilkinson on The Project or by Samantha Maiden on news.com.au in February 2021. Lehrmann was not publicly named by the media as the person accused of raping Brittany Higgins until August 2021. Whether Lehrmann can rely on later publications that did identify him as a basis to prove that he was identifiable in the earlier stories remains an unresolved legal question that Lehrmann and his legal team must confront.

Second, under the reformed defamation laws, a plaintiff must prove that they have suffered serious harm from the defamatory publications. While the seriousness of the harm to Lehrmann’s reputation appears self-evident, the media defendants may argue that, given the ubiquity of publications about Lehrmann, it is impossible for him to show what harm has been caused by particular articles or broadcasts. In other words, how will he prove the extent to which the harm to his reputation was caused by The Project, the ABC, or Shane Drumgold SC, or any of the other potential defendants that he is said to be considering suing?

Third, unlike criminal cases where the truth or falsity of the allegations is all that ultimately matters, in a defamation case, the defendants can still win even if they cannot prove (or do not seek to prove) the truth of the substantive allegations. One way for the defendants to do so in the Lehrmann case would be to establish that their publication concerned an issue of public interest, and that they reasonably believed that publication of the matter was in the public interest.

None of this will be news to Lehrmann, who has reportedly been receiving advice from the prominent plaintiff media lawyer Mark O’Brien, whose recent clients include Craig McLachlan and Ben Roberts-Smith. Lehrmann is reported to have also been receiving advice behind the scenes from the barrister Arthur Moses SC, which would mean Lehrmann would be represented by two of the lawyers who acted for Roberts-Smith in his four-year defamation case against the Age and the Sydney Morning Herald (in which the author of this article acted for the newspapers).

One of the enduring lessons I’ve been taught about defamation is that it is like grabbing a tiger by the tail: It’s difficult to let go without being bitten.

  • Dean Levitan is a senior media lawyer at MinterEllison