An accused rapist who had sought to clear his name by suing one of Australia’s largest television networks for defamation has lost his case, with a judge finding that, on the balance of probabilities, he committed the crime.

After the interview aired, Lehrmann was charged with sexual intercourse without consent, but the trial was abandoned in 2022 due to juror misconduct and not revived due to fears about Higgins’ mental health.

Without a trial and a means to clear his name, Lehrmann turned to defamation action, claiming that Network Ten and “The Project” presenter Lisa Wilkinson damaged his reputation by providing enough information in the program for him to be identified, though he was not named.

Network Ten and Wilkinson chose to fight the charge, mounting a truth defense, meaning that to win, the network’s lawyers needed to prove that on the balance of probabilities the rape happened.

Lee found Monday that the two had sex that night, but Higgins was so inebriated she couldn’t possibly have given her consent – and that Lehrmann didn’t seek to obtain it.

“I’m satisfied that it is more likely than not that Mr Lehrmann’s state of mind was such that he was so intent upon gratification to be indifferent to Miss Higgins’ consent,” said Lee.

The ruling delivers a devastating blow to Lehrmann’s attempt to clear his name. As Lee put it in his judgement: “Having escaped the lion’s den, Mr Lehrmann made the mistake of going back for his hat.”

  • talEnglish
    361·
    7 months ago

    Note that this is in Australia. The difficulty of winning defamation lawsuits varies considerably from jurisdiction to jurisdiction. My understanding from past reading is that the US takes a very dim view of these, whereas it is much easier to win these in the UK; this had been a serious political international issue in the past, where plantiffs had kept trying to move legal action that probably should have occurred in the US to the UK on flimsy grounds, because it was much easier to win defamation lawsuits in the UK. Notably, in the UK, the burden of proof rested upon the defendant; one was “guilty until proven innocent”. In 2010, Congress ultimately passed legislation disallowing US courts from enforcing defamation actions in other jurisdictions unless the venue of the lawsuit had protections that were at least as strong as provided by the First Amendment.

    Note that subsequent to that point, the UK passed some legislation that did make defamation actions somewhat more difficult.

    This may be more-of-a-big-deal than it might sound to American readers – accustomed to defamation lawsuits that are rare and hard to win – if Australian defamation law is more like that in the UK, which I suppose is plausible.

    googles

    Yeah, from Wikipedia, it sounds like Commonwealth defamation law has been somewhat similar:

    https://en.wikipedia.org/wiki/Defamation

    American defamation law is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries. A comprehensive discussion of what is and is not libel or slander under American law is difficult, as the definition differs between different states and is further affected by federal law. Some states codify what constitutes slander and libel together, merging the concepts into a single defamation law.

    googles

    https://theconversation.com/why-defamation-suits-in-australia-are-so-ubiquitous-and-difficult-to-defend-for-media-organisations-157143

    Reforming defamation

    Changes to Australia’s defamation law are in the works. Some will help potential defendants, such as a new threshold of serious harm and tighter time limits for bringing actions.

    Other reforms will require a wait-and-see approach, like the new public interest defence, which aims to rebalance defamation law in favour of public interest reporting but retains elements of the old reasonable publication defence.

    This leaves room for courts to maintain a tough stance on what is regarded as “reasonable” media conduct when it comes to defamation. That stance recently saw NSW courts hold three Australian media companies liable for comments that were posted on their Facebook pages about a former youth detention detainee.

    More meaningful reform might have established stronger public interest and reportage defences, or required complainants to prove that the material published about them was false - or even that the publisher knew it to be false but published it anyway.

    Defamation cases involving public figures in the United States require proof that the publisher knew the material to be false, which is why US politicians almost never sue for defamation.

    In Australia, by contrast, politicians do sue – and successfully. They often opt for the Federal Court where, compared with the state courts, they are likely to have their matter heard by a judge alone, rather than having to convince a jury of the merits of their case.

    Citizens and institutions seeking to hold those in power to account are too often being silenced by our current defamation laws. In a strong democracy like Australia, we can — and must — do better.

    According to this, it sounds like Australia had two stages of defamation reform legislation passed recently, the first in 2021; part of this was that defamation law had apparently varied province by province, and there was an attempt to unify it. Apparently these tended to shift things in favor of the defendant, especially where the defendant was a news organization, as is the case in OP’s article.

    https://www.bartier.com.au/insights/articles/stage-2-defamation-law-reforms-what-to-expect-in-2023

    https://www.ruleoflaw.org.au/civil/defamation/2021-law-reform/