Porter’s defamation action: A slightly technical overview

What must Porter prove to succeed? What must the ABC show to defend?

Christian Porter has sued ABC and Louise Milligan for defamation. This is premised on (inter alia) an article that Milligan wrote in the ABC, which described allegations of a “brutal rape” at the hands of an unnamed senior minister. Amidst intense political pressure, Christian Porter disclosed he was that minister at the center of the allegations. But why can Porter sue? What can ABC say in defence?

In short: Porter has an arguable case. The ABC piece clearly provided enough information to identify Porter even though it purported to anonymize him. This manifested in the social media data after the publication. The reporting also carried the imputation that he had committed sexual assault. Without more, it is not enough to merely claim that they merely reported on rumors. For that to work, they must show that the reporting was “reasonable”. This prima facie includes – at the minimum – the right to respond and a balanced report (including any exculpatory information). Failing that, they must show that the subject matter (i.e., the sexual assault occurring) was true.

Importantly, this case does not quash freedom of speech of political reporting. Reporters can report political rumors. However, they must do so reasonably and afford the accused person the right of response and must not cherry pick information or sources. Defamation law stops one sided and biased reporting. It does not stop public interest reporting that is reasonable in all the circumstances.

What is Porter suing for?

Porter is suing for defamation. This arises where either words or text convey a defamatory imputation. This involves claims that harm the person’s reputation so as to disparage them, drive others to shun them, or subject them to hatred or contempt. Something is defamatory even it is true. But, truth is a defence to the litigation. Both the publisher and the writer can be liable for defamation.[1]

Porter claims – in short – that the article carried the defamatory imputation that he sexually assaulted the claimant. Such an imputation would plausibly cause hatred or contempt, and would cause people to shun him. So much is clear from the subsequent media coverage.

Reporting rumors and hearsay can give rise to defamation. The ABC and Milligan might claim they did no more than relay rumors and hearsay. But, this is neither a complete defence to defamation nor will it eliminate a defamatory imputation. Rather, if the ABC or Milligan wish to relay rumors that have a defamatory imputation, they must either show that the rumors are true and not merely that there are rumors,[2] or they must establish another defence (i.e., fair coverage of a matter of concern or qualified privilege).

In this case it is relatively clear that Porter suffered harm. The ABC/Milligan can argue that they did not name Porter; and thus, could not have defamed him. However, Porter’s argument appears to be that immediately following the article, his name began trending, and alterations were made to his Wikipedia page. Further, other commenters referred to Milligan as breaking the story.[3]

The ABC might claim that rumors were circulating before publication. However, this is a red herring. It is sufficient that there were publication to at least one additional person. Where, as here, the apparent rumors were not widely in the public domain, the dissemination to more people is relevant. Indeed, reiterating someone else’s defamatory comment is itself defamation.[4]

What defences can the ABC and Milligan raise?

The ABC can raise several arguments. However, in general, the onus of proof is on the ABC and Milligan to prove them.

The article did not mention Porter: ABC/Milligan might argue that the article did not mention Porter by name; and thus, Porter cannot prove that he was defamed. This is not a defence per se. Rather it goes to whether he was defamed. This argument is unlikely to work. The article contained enough details to eliminate many candidates. Porter’s legal team has indicated that Media Watch – another ABC program – highlighted the ease with which he could be identified. They would also point to the ABCs record of targeting, the cross-link between people featured in the reporting, and the significant social media activity surrounding him after the report.

Reporting on a matter of interest (aka qualified privilege): It is a defence to provide information to a recipient that has an interest in that information if the publication is reasonable in the circumstances and it was not actuated by malice. Given that sexual assault allegations against a minister are of interest, the question is whether the reporting was reasonable.

Reasonableness in publication involves considering all the circumstances. The court must consider (inter alia)[5] whether they tried to verify the information, whether the report contained the full story, the sources used, and whether the publication clearly distinguished facts from suspicions. This will also include considering whether the ABC attempted to contact Porter for comment.

The ABC and Milligan will have a heavy burden. Porter claims ABC and Milligan did not ask him for his side of the story, that they selectively cherry picked pieces of information from the dossier, while removing any exculpatory information, and that they quoted people who – while having no first hand knowledge – implicitly presented Porter in a negative way. Thus, establishing reasonableness could be difficult. This will turn on the evidence adduced at court.

Porter is also claiming that the publication is motived by malice. Porter need not prove this if the publication itself is not reasonable. That is, a publication can be unreasonable even it were not motivated by malice. This can occur if laziness, or sloppiness, caused an unreasonable publication.

Malice can amplify damages and will also defeat a claim of qualified privilege. Here, Porter must show that the publication was for an improper purpose or that the ABC/Milligan did not believe the publication to be true. It is not enough for Porter to show that the ABC/Milligan merely leapt to conclusions with insufficient information or were careless, or failed to consider exculpatory information.[6] To show an improper purpose, Porter seems to be claiming that the publication was motivated by spite or ill will. This could ground malice.[7] But, any alleged improper purpose must be the dominant purpose.[8] And, given that he is a politician, and merely scoring political points is not per se improper (if this is regarded as a political matter),[9] Malice is not automatically clear cut.

What about truth? The ABC/Milligan can try to argue that the subject of the rumors are true.[10] It is not enough to prove there were rumors. They must prove they were true. This is because reporting on, and relying, rumors is fine only if it falls within qualified privilege (see above) or those rumors are substantially true.[11] Here, they must prove the sexual assault occurred on the balance of probabilities. That is, it must be more likely than not that the sexual assault happened. This is a lower burden than at a criminal trial, where conviction requires proof beyond reasonable doubt.

The general public does not have sufficient evidence to determine if the sexual assault occurred. It is for the court to determine based on all facts that are adduced at court. This will involve examining exculpatory evidence. Those documents must satisfy the ordinary rules of evidence. It is not sufficient that people claim to ‘believe’ or ‘suspect’ that he committed sexual assault. Rather, it must be proven on the balance of probabilities.

Does it matter if the dossier was public: The ABC/Milligan might try to claim that they merely published what was in a public document. It is a defence if the published statements were a fair summary, or fair extract from such a document. Here, this will be challenging to establish. This is because the ABC/Millilgan did not publish information from the document that would help Porter’s case. This is much the same situation as establishing reasonableness with the aforementioned qualified privilege defence.

What if it is an honest opinion? It is a defence to defamation that the comments were merely an expression of opinion, the matter is of public interest, and the opinion is based on proper material.[12] Here, the main issues are whether (a) the ABC/Milligan can argue that the reporting / defamatory imputation was merely an opinion, and (b) the basis for that opinion was ‘proper material’.

This argument will likely fail. It is arguable that the article merely expressed an opinion. However, this is not necessarily clear to a reasonable reader. This is a matter of fact for the court to determine. The bigger issue is that even if the ABC/Milligan argue that the article was opinion, they need to show that it was based on proper material. Proper material is material that is substantially true, or based on absolute or qualified privilege. But here, the ABC/Milligan will need to prove that the dossier’s allegations were substantially true, causing this defence to overlap with the aforementioned truth/justification defence.

Where does this leave us?

The defamation trial is set to proceed. It is not a criminal trial. The ABC/Milligan will likely try to plead that the defamatory imputations were correct: That he had sexually assaulted the claimant on the balance of probabilities. This is a lower burden than at a criminal trial. And, if wrongdoing cannot be established on the balance of probabilities, it seems unlikely it could be established beyond reasonable doubt. The trial could provide some certainty.

This trial should also not chill free speech. It is merely a lesson to reporters to be more careful when reporting. Reporters should be prudent when reporting rumors. And, reporters should ensure natural justice by – at the very least – airing plausible exculpatory information and giving the accused the right to respond. This is a lesson the ABC should have learned after the Geoffrey Rush trial, and after losing a defamation case in February 2021.[13]

[1] Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574. See also Nationwide News Pty Limited v Rush [2020] FCAFC 115 [2] Hopman v Mirror Newspapers Ltd [1960] NSWR 559. [3] See e.g., reporting in the Wall Street Journal: https://www.wsj.com/articles/australian-women-protest-governments-handling-of-sexual-assault-allegations-11615915062?mod=lead_feature_below_a_pos1[4] McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513; Hopman v Mirror Newspapers Ltd [1960] NSWR 559. [5] See Defamation Act 2005 (NSW) Section 30. Similar legislation is in all Australian jurisdictions. [6] Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 [7] Roberts v Bass (2002) 212 CLR 1. [8] Roberts v Bass (2002) 212 CLR 1. [9] Lange v Australian Broadcasting Corp (1997) 189 CLR 520. [10] See e.g., Defamation Act 2005 (NSW) Section 25 [11] Hopman v Mirror Newspapers Ltd [1960] NSWR 559 [12] See e.g., Defamation Act 2005 (NSW) Section 31 [13]https://www.abc.net.au/news/2021-02-02/chau-chak-wing-wins-defamation-case-against-abc/13111934