26 March 2021

Porter v ABC & Miller – Another interesting defamation case.

Federal Attorney-General Christian Porter has launched defamation action against the ABC and journalist Louise Milligan seeking aggravated damages over an ABC article published on 26 February 2021 headlined “Scott Morrison, senators and AFP told of historical rape allegation against Cabinet Minister”.

That article reported a letter had been sent to Prime Minister Scott Morrison containing a historical allegation of rape against a serving Cabinet minister. it can be read here.

Mr Porter alleges the article, which did not name him, was defamatory because it carried the following defamatory imputations:

  • Mr Porter brutally raped a 16-year-old girl in 1988;
  • Mr Porter anally raped a 16-year-old girl in 1988;
  • Mr Porter’s brutal and anal rape of a 16-year-old girl contributed to her taking her own life;
  • Mr Porter is reasonably suspected by police of brutally and anally raping a 16-year-old girl in 1988;
  • There are reasonable grounds for suspecting that Mr Porter brutally and anally raped a 16-year-old girl;
  • There are reasonable grounds for suspecting that Porter’s brutal and anal rape of a 16-year-old girl contributed to her taking her own life; and
  • Mr Porter had so conducted himself that it warranted him being reasonably suspected by police of brutally and anally raping a 16-year-old girl in 1988.

 

Mr Porter’s lawyers claim the ABC and its journalist Louise Miller (collectively referred to in this article as the ABC) acted with malice in publishing the February 26 article because Ms Miller knew it was impossible for criminal or civil guilt to be proved.

Mr Porter’s Statement of Claim pleads “Milligan acted with malice knowing of the impossibility of any finding of guilt or civil liability in the circumstances and believing that a public campaign designed to damage his reputation would be a more effective substitute against Porter in replacement of the process of the justice system.”

Politicians have long used defamation law to protect their personal reputations and as a strategic tool in shaping political communication.

The Federal Court has made Mr Porter’s Statement of Claim available for viewing here.

Mr Porter’s action was filed on the same day that Australians gathered across the country for the women’s 4 March 2021 marches calling for gender justice at all levels of our society.

Criminal proceedings are now unlikely to occur given that the woman who made the allegations, which Milligan reported, took her life in 2020. Mr Porter’s defamation proceedings appear designed to provide a forum for Mr Porter to defend his reputation through a civil process.

Scott Morrison has not sought the advice of the Solicitor General regarding the establishment of an independent inquiry into the fitness of Porter to hold his high office, allowing what Justin Gleeson SC has termed “a legal vacuum to consume the office of attorney general”.

At a speech to the national press club in 2019, Mr Porter discussed the need for defamation law reform, stating, “I think it is fair to say that current defamation laws no longer strike the perfect balance between public interest journalism and protecting individuals from reputational harm”.

It follows that the determination of Mr Porter’s defamation case will apply defamation laws that Mr Porter himself has publicly identified as unfairly constraining public interest media.
His defamation action creates a number of interesting legal issues.

The first of these issues is that the publication does not explicitly identify Porter. In fact, it was Mr Porter who identified himself as the subject of the article some weeks after it was published, but he advances his case on the basis that the article identified him because the ABC had previously published stories including those entitled “Christian Porter was warned over public behaviour with young female staffer by then-prime minister Malcolm Turnbull”, “Investigation reveals history of sexism and inappropriate behaviour by Attorney-General Christian Porter” and because of the now well-known November 2020 ABC 4Corners program reporting on Mr Porter’s dealings with female staffers.
In assessing whether the article identified Mr Porter, the Federal Court will have to consider whether an ordinary, reasonable reader of the article know that it was about him.

Notwithstanding the fact that Mr Porter was the one to publicly admit that the article was about him soon after it was published, his lawyer Rebekah Giles said that he only did so after a series of news articles, social media posts and interviews made him “easily identifiable to many Australians”.

The second interesting legal issue to be considered by the Federal Court is that the 26 February 2021 article solely reported on allegations, without in any way adopting them as the truth. The Federal Court will be asked to consider whether the article nonetheless conveyed the idea that the allegations were factually accurate and had substance to them.

The ABC may have a justification defence if it can prove, on the balance of probabilities, that the pleaded imputations of the article were substantially true. But this is unlikely to be their defence as discussed below because it will be far easier to argue that the article did not carry the pleaded imputations.

Will the ABC be able to defend the action? I certainly think so. The ABC has until 4 May 2021 to file a written defence. It is likely to argue the imputations pleaded by Mr Porter were not conveyed by the online article, and to also raise the defence of qualified privilege.

In my opinion, the only imputation carried by the article was that allegations of historical sexual abuse had been made, and that there were grounds for an investigation, but this is somewhat irrelevant and is not the case the ABC must answer.

Federal Court Justice Jayne Jagot will be the final arbiter of what imputations are carried by the article. If she says none of the meanings alleged by Mr Porter were conveyed, the ABC will win.
The ABC has shown its willingness to defend Mr Porter’s defamation action. It has instructed former Solicitor General Justin Gleeson SC, experienced Victorian defamation barrister Renee Enbom SC, who acted for actor Rebel Wilson, and Sydney barrister Clarissa Amato, who is well-versed in acting for media defendants including Nine and the ABC to represent it.

In a statement on Monday, Mr Porter’s solicitor said it was open to the ABC to plead a truth defence to these claims, effectively turning the case into a rape trial inside a defamation case.

The justification or ‘truth’ defence was well-deployed in the Johnny Depp defamation case that he brought against the Sun, where a London judge heard evidence from his ex-wife Amber Heard, to the effect that allegations of abuse made by the Sun (which labelled him a ‘wife beater’) were substantially true. This led to a dramatic loss for Mr Depp, although he has appealed the decision at first instance.

However, the ABC is unlikely to seek to plead justification or ‘truth’ as a defence to Mr Porter’s claim. This is because of the death of the complainant, and the fact that in almost all high-profile defamation cases, a media defendant will argue its publication did not carry the alleged defamatory imputations but made a less serious claim, such as (in this instance) that there were reasonable grounds for an investigation into the allegation of historical sexual abuse.

Another likely defence to be run by the ABC is the defence of qualified privilege. A claim for damages for a defamatory publication can be defended if the publication was in the public interest.

There are a several iterations of this defence, and this defence be overruled if the relevant publication was unreasonable or malicious. This is likely to be one of the battlelines in this litigation, and the Federal Court will be asked to judge the reasonableness of ABC’s reporting.

The Australian constitution contains no express protection for freedom of expression and the implied freedom of political communication is profoundly underwhelming. The associated defamation defence of qualified privilege, even as shaped by the implied freedom, has been to date largely ineffectual.
However, Mr Gleeson is an experienced constitutional lawyer and is well-placed to make arguments about the implied freedom and the protection it affords to public interest journalism.

I suspect Mr Porter’s litigation is intended to create a version of the public inquiry that many have been seeking, and that Morrison has resisted. But if the ABC limits its defences to that of denying the pleaded imputations and further or alternatively relying on a defence of qualified privilege, it is most unlikely that it will produce any vindication for Mr Porter, who I suspect will have a hard time in making out his case.

Witnesses will be called. Porter himself can give evidence. Evidence will be tested under cross-examination.

But if the ABC plays its card right, it is unlikely that the evidence led will be broad, or that Mr Porter will have an opportunity for his own version of a de-facto inquiry into the allegations made against him.
Watch this space.