News Corp and Network Ten will both seek to prove the truth of Brittany Higgins’ allegations of rape and say their experienced journalists took great effort to verify and corroborate a story of clear public interest, according to defence documents filed on Tuesday.
Lehrmann is suing both media companies and star journalists Lisa Wilkinson and Samantha Maiden over their initial reporting of Higgins’ allegations in February 2021.
He says the broadcasts defamed him by suggesting he raped Higgins in the office of Linda Reynolds, a former minister and their then boss, in Parliament House in 2019.
In their defences, Network Ten and News Corp’s subsidiary, News Life Media, have adopted a similar approach to Wilkinson, who was the first to outline her defence last week.
Network Ten, represented by Thomson Geer Lawyers, and News Corp, represented by in-house lawyers, have argued that Lehrmann was not identified in the broadcasts and therefore cannot have been defamed.
News Corp’s defence says Lehrmann was neither named nor pictured, and that: “The Applicant was not described in the first matter complained of by his job description as a staff member in the office of the Hon. Linda Reynolds MP... The Applicant was not otherwise described in the first matter complained of in a manner that identified him to third parties, including to persons acquainted with the Applicant.”
Both outlets, like Wilkinson, have also raised the defence of justification and will seek to prove the substantial truth of the imputation that Lehrmann raped Higgins.
The publications occurred too early for Network Ten or News Corp to seek to use the new public interest defence, which started in most jurisdictions in July 2021, just after the initial Higgins stories.
But both outlets will seek to rely on qualified privilege, which is available to publications in the public interest where journalists and publishers have acted reasonably.
Network Ten has laid out a series of steps its reporting team took to factcheck, verify and seek responses to the story.
It said the story was of “interest or apparent interest” to the public because, among other things, it concerned an allegation of rape in a minister’s office at parliament after hours, the government’s handling of the allegation and “allegations of a political cover-up by the government”.
The broadcaster said its reporting team, made up of “experienced and competent journalists”, acted reasonably, including by engaging in lengthy and repeated interviews and conversations with Higgins and her partner, David Sharaz, and having her sign a release form and statutory declaration attesting to the truth of her allegations.
It said it also relied on other documents, including photographs, Uber records, email correspondence and text messages, and interviewed a string of others who had knowledge of Higgins’ allegations.
The broadcaster kept knowledge of the story tightly held, according to its defence. It kept the production team small, codenamed the project “Enviro”, and kept all documents, scripts, recordings and edited videos off the shared server.
“In light of the seriousness of Higgins’ allegations, Ten decided prior to recording the unedited interview to not name Lehrmann as the alleged perpetrator in the matters complained of and instead referred to him as a ‘senior male advisor’, ‘senior male colleague’, ‘senior colleague’ or ‘senior staffer’,” the defence says. “Ten took care not to inadvertently identify any other person as the alleged perpetrator. Lehrmann’s name was not used with the broader production team.”
It also said it took care to “distinguish between suspicions, allegations and proven facts in the questions that were put to Higgins by Wilkinson. That included by repeated use of the words ‘claims’, ‘allegations’, ‘alleged rapist’, ‘alleged incident’, ‘alleged rape’, ‘the man you say raped you’, ‘alleged assault’ and ‘if everything you say is true’”.
News Corp also described the steps Maiden – who it described as a “political and investigative journalist of nearly 30-years’ standing in the profession” – took to test the credibility of Higgins’ allegations and corroborate them with other sources, including emails, photographs, audio recordings, other interviews and statements, and a transcript of Higgins’ interview with Network Ten.
Among other things, News Corp had confirmed Higgins had made contemporaneous complaints about the alleged rape with the Australian Federal Police, ACT Policing, the Canberra Rape Crisis Centre, her then boss Linda Reynolds and her chief of staff Fiona Brown, her friend Ben Dillaway, and others.
The media company described the story as one clearly in the public interest.
“The subject matter of the matters complained of was intrinsically and inherently a matter of legitimate public interest in that it concerned allegations that a political staffer had been raped in Parliament House by a fellow-staffer and that the federal government had grossly mishandled the allegations,” the defence said.
Lehrmann alleges the stories carried defamatory imputations, including that he “raped Brittany Higgins in defence minister Linda Reynolds’ office in 2019” and that he “continued to rape Brittany Higgins after she woke up mid-rape and was crying and telling him to stop at least half a dozen times”.
He has consistently denied the rape allegation, maintaining that no sexual activity took place between himself and Higgins. He pleaded not guilty to sexual intercourse without consent at an earlier criminal trial, which was aborted due to juror misconduct. A second trial was not pursued due to serious concerns about Higgins’ mental health.
The first hurdle to Lehrmann’s pursuit of a defamation claim is the time limit that typically applies to such cases. Defamation proceedings must usually begin within 12 months of the defamatory publication, but Lehrmann is well outside that limitation period in this case.
He will argue that the time limit should be extended. The Guardian revealed last week that Lehrmann will likely face cross-examination, including from Wilkinson’s barrister, Sue Chrysanthou SC, on 16 March on his reasons for delay. It would be the first time that Lehrmann has given evidence in open court.
If he convinces the court to extend the limitation period, Lehrmann will be able to proceed with his case.
Lehrmann is expected to have to give evidence in the defamation trials, if they proceed, to demonstrate he has suffered hurt and harm as a result of publications.
He is arguing the “respondents were recklessly indifferent to the truth or falsity of the imputations” and alleges he was not given a reasonable opportunity to respond.
