How the Lehrmann v Channel 10 defamation case shone an unflattering light on commercial news gathering

Network Ten and Lisa Wilkinson’s victory in the defamation action brought against them by Bruce Lehrmann is the second big win inside a year for the Australian media using the defence of truth. However, it comes at a heavy cost to the reputations of the industry and the profession of journalism.

The evidence about the Seven Network’s efforts to get Lehrmann to give an exclusive interview for its Spotlight program, allegedly including^[1] the purchase of cocaine and prostitute services for him, cast a pall over the way commercial TV news programs operate.

These allegations were denied by Seven^[2], but invoices and receipts said to support them were produced in court. Justice Michael Lee stated in his judgment^[3] that they were uncontradicted by any evidence in reply from Lehrmann.

By contrast with this unsavoury episode, only ten months ago, in June 2023, Australians saw journalism at the opposite end of the ethical spectrum when The Age, The Sydney Morning Herald and The Canberra Times proved the substantial truth of the imputation that Ben Roberts-Smith was a war criminal. It was a victory based on extraordinary feats of investigative journalism on a matter of grave public interest.

Read more: A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?^[4]

How Network Ten got it right … and wrong

Network Ten and Wilkinson also produced journalism dealing with a matter of grave public interest. They can claim credit for giving a voice to Brittany Higgins, now proved to be the victim of rape, by interviewing her on The Project, and in doing so standing up for the right of all women victims to be heard.

But the credit is tarnished by their actions first in disrupting Lehrmann’s criminal trial and second by serious journalistic weaknesses in the production of The Project interview itself.

The interview won Wilkinson a silver Logie, but her acceptance speech was considered by the ACT Supreme Court^[5] to be so prejudicial in favour of Higgins as to amount to trial by media.

The trial was postponed and ultimately collapsed because of juror misconduct, with no findings against Lehrmann.

Justice Lee acknowledged that Wilkinson had cleared her speech with Ten’s senior litigation counsel, Tasha Smithies, whose conduct in this matter he criticised, and was encouraged by the network to make the speech. In these respects, he said, Wilkinson had been badly let down by those she turned to for advice.

However, he went on to say she was an experienced journalist who might have realised the speech was fraught with danger if she had thought it through as a journalist rather than as a champion of Higgins.

This attachment to Higgins’ cause was a fundamental weakness that underlay the many substantive criticisms Justice Lee made of the journalistic motives and processes leading up to The Project interview.

From the outset, Wilkinson had said to Higgins’ boyfriend, David Sharaz, that she proposed to “hold Britt’s hand through all this”.

Justice Lee observed that while he was aware of the need to build rapport and deal sensitively with a person presenting as a victim of sexual assault, assessing the credibility of someone making claims of serious wrongdoing required a degree of detachment that was absent in the interactions between The Project team and Higgins.

The second weakness was that Wilkinson and the producer of the program, Angus Llewellyn, failed to keep an open mind. In Justice Lee’s words, all contemporaneous records suggested they never doubted the truth of Higgins’ account.

For them, he said, the most important part of the story was Higgins’ narrative in which others were putting up roadblocks to her quest for justice.

It was this cover-up or victimisation allegation that had generated so much notoriety and public interest, yet it had contained inconsistencies, falsities and imprecisions that the journalists had failed resolve.

Justice Lee also raised doubts about Higgins’ motive for doing the interview. Llewellyn had given evidence that he thought Higgins wanted to speak out about her experience to create change, to prevent it from happening to anyone else, and did not consider she had a vendetta.

While conceding there might have been some truth in this, Justice Lee said any suggestion Wilkinson or Llewellyn approached the story with disinterested professional scepticism was undermined by the way they were prepared to assist in the plans of Sharaz and Higgins to use the allegations for immediate political advantage.

He said Sharaz’s political motives were made plain by his expressed intention to liaise with an opposition frontbencher to deploy the allegations against the government during Question Time.

Yet Llewellyn had evidently considered this to be of no consequence, leading Justice Lee to say that any journalist who did not think Sharaz had a motivation to inflict immediate political damage would have to be “wilfully blind”.

Moreover, Llewellyn and Wilkinson had expressed a willingness to assist in the political use of the serious charges they were supposedly interrogating and assessing with independent minds.

So once more in this saga, journalists and the media were revealed as having become partisan political participants in the story.

Read more: Judge finds Bruce Lehrmann raped Brittany Higgins and dismisses Network 10 defamation case. How did it play out?^[6]

Journalist as participant

Previously we had seen The Australian newspaper and one of its columnists, Janet Albrechtsen, insert themselves into the inquiry established by the ACT government into the way the criminal case against Lehrmann had been handled.

According to a judicial review of that inquiry by the ACT Supreme Court, the chair of the inquiry, Walter Sofronoff, engaged in 273 interactions with Albrechtsen^[7] over the inquiry’s seven months. This included 51 phone calls, text messages, emails and a private lunch in Brisbane.

It was alleged during the judicial review^[8] that Albrechtsen was an “advocate” for Lehrmann, and the review found that Sofronoff’s extensive communications with her gave rise to an impression of bias in the findings he made against the former ACT director of public prosecutions, Shane Drumgold.

This phenomenon of journalist as participant undermines public trust in the credibility of the media.

In his recent book Collision of Power^[9], Martin Baron, who was executive editor of the Washington Post throughout Donald Trump’s presidency, takes a strong stand against this trend.

He argues that the more journalists are perceived as partisans, the less their reporting will be believed.

At a time of peril for democratic institutions, we need to be good stewards of our own, reinforcing standards rather than abandoning them.

The Project did right by Higgins and by helping to elevate the issue of violence against women. But this was achieved by journalistic attitudes and practices that did not stand up to scrutiny.

Justice Lee described the Lehrmann saga as “an omnishambles” that had inflicted widespread collateral damage. The media and journalism have not escaped.

References

1. ^{^} allegedly including (www.smh.com.au)
2. ^{^} denied by Seven (www.abc.net.au)
3. ^{^} in his judgment (www.judgments.fedcourt.gov.au)
4. ^{^} A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law? (theconversation.com)
5. ^{^} considered by the ACT Supreme Court (www.courts.act.gov.au)
6. ^{^} Judge finds Bruce Lehrmann raped Brittany Higgins and dismisses Network 10 defamation case. How did it play out? (theconversation.com)
7. ^{^} 273 interactions with Albrechtsen (www.theguardian.com)
8. ^{^} during the judicial review (www.theguardian.com)
9. ^{^} Collision of Power (us.macmillan.com)