Bruce Lehrmann has accused the Australian Broadcasting Corporation of acting maliciously by broadcasting Brittany Higgins’ National Press Club address, saying in court documents it was “wilfully blind” to the risk of her defaming him or making prejudicial comments close to his trial.
Lehrmann is suing the ABC over a joint address by Higgins and Grace Tame to the National Press Club in February 2022, which was broadcast live and later uploaded in full to the ABC’s YouTube channel.
The broadcaster is relying partly on a qualified privilege defence that protects publishers where they acted reasonably while giving information to a public that had an “an interest or apparent interest in having information on some subject”.
Lehrmann’s lawyers have responded by accusing the ABC of malice, which, if accepted by the court, would defeat the broadcaster’s qualified privilege defence.
In submissions filed to the federal court, the former political staffer says the ABC was aware of Higgins’ public commentary about her alleged sexual assault, that Lehrmann had been identified as the alleged perpetrator, and that he had a trial looming.
The promotion of the NPC address referred to Higgins being an advocate for “survivors of sexual assault and abuse” and referred to her decision to “publicly allege she was raped by a colleague inside Parliament House”, the court documents say.
The ABC journalist Laura Tingle also introduced Higgins by referring to her “shocking allegations of assault”.
“It was not only reasonably foreseeable, and high risk, but quite inevitable that Ms Higgins would, during the NPC address, repeat her allegation that she was sexually assaulted by an unnamed work colleague in Parliament House,” Lehrmann’s lawyers allege.
“It was also probable that large numbers of viewers would identify the applicant as being the unnamed work colleague who allegedly sexually assaulted Ms Higgins.”
The court documents allege the ABC had made no attempt to check the truth of the allegation and also failed to delay the broadcast so that material could be removed.
That made it “recklessly indifferent, negligent, and wilfully blind” to the likelihood that Higgins would make comments defamatory of Lehrmann and “prejudicial to the fair trial of the said criminal proceedings”.
“Even if a potential juror already had some awareness of the allegations made by Ms Higgins, their repetition in such a national forum … could only amount to an overwhelming message that Ms Higgins’ allegations were true and that she had been assaulted. Indeed the whole point of the NPC address was that Ms Higgins was telling the truth and that cultural and other change ought to follow.”
The malice meant the ABC could not have reasonably believed that the publications were in the public interest, the court documents allege.
The ABC has not accepted that Lehrmann was identified by the broadcasts. He wasn’t named, though his identity had been widely reported after he was charged the previous year.
The broadcaster says the broadcasts didn’t defame Lehrmann and, even if they did, did not cause “serious harm” to his reputation.
Its defence says there was no serious harm because it was already “notorious throughout Australia that Lehrmann was the person accused of, and charged with, the sexual assault of Ms Higgins”.
The ABC is also relying on a defence of innocent dissemination, which can be available to secondary publishers.
Lehrmann has denied raping Higgins. His first criminal trial was aborted due to juror misconduct and a second was not pursued due to fears for Higgins’ mental health.
