In a surprising backdown, Christian Porter yesterday decided not to pursue his lawsuit against the ABC and journalist Louise Milligan, for publishing allegations that an unnamed Minister raped a young girl in the 90s (despite not naming Porter in their coverage). This Australian defamation case was a prime example of a concerning and relatively recent trend of politicians and high profile figures using defamation to squash criticism – taking advantage of Australia’s suss defamation laws.
The media should be responsible in the way it writes about anyone, including politicians. But the fact that media criticism often prompts a defamation case is a red flag – here are just five current examples of Australian defamation lawsuits against the media.
Do they pass tests of fair criticism, public interest and free speech for you?
UPDATED: 1 June 2023
BONUS: Christian Porter vs Louise Milligan and the ABC
This is technically this major Australian defamation case is over, but it’s worth recapping. The ABC was first to break the news about a woman’s allegation that she was raped in 1988 by a government Minister when she was 16 and he was 17. The ABC did not name Porter in their reports, but he outed himself as the Minister in question shortly after. The victim tragically took her own life in 2020, leaving NSW Police little recourse to investigate the allegations – they had failed to adequately do so while she was alive.
Porter lodged a defamation suit against the ABC and Four Corners journalist Louise Milligan for publishing the allegations. However, in the lead up to the trial his case was dealt with a couple of serious blows:
- The ABC lodged their intention to use the truth defence, meaning that they would be presenting evidence to prove that what the allegations about Porter were indeed true;
- One of his lawyers was forced to step down from the case over a conflict of interest as she had already consulted with the alleged victim’s friends.
In mediation yesterday, Porter and the ABC’s legal teams reached an agreement: they would publish a note on the article clarifying that readers may have misinterpreted the piece (yeah, weird of Porter to request this as it’s not an apology really) and he would not pursue the case.
Despite Porter claiming that he had “won”, that’s quite obviously not the case: he decided not to continue with a trial that would draw evidence about him into the light in front of the entire country. The ABC paid the costs of mediation (estimated to be about $100,000) but none of Porter’s legal fees nor any settlement.
If he wants to dispute that, happy to refresh his memory and release the terms he offered.
— Louise Milligan (@Milliganreports) May 31, 2021
1. Peter Dutton vs Shane Bazzi
Defence Minister Peter Dutton is suing refugee activist over a Tweet that labelled him a “rape apologist”. The tweet was prompted by Dutton’s comments that Brittany Higgins’ allegations of being raped inside Parliament House was “he said, she said”.
Bazzi intends to fight the defamation case, and has started a fundraiser to help with legal costs – any funds raised not spent on lawyers fees will be donated to Refugee Advice and Casework Service and the Rape and Domestic Violence Services Australia.
FWIW, Dutton thinks of himself as a champion of free speech… This coming from the man who wanted an unflattering photo of him removed from the Internet.
FINAL UPDATE 17 May: Peter Dutton initially on this case, and Justice Richard White ruled that Bazzi must pay $35,000 in compensation to Dutton (a relatively low payment as far as defamation goes) . Dutton had also requested an injunction against Bazzi (to stop him commenting in the future) but the judge denied the request. But Bazzi appealed the decision and won on 17 May 2022. The Federal Court ruled that if the tweet was read in conjunction with the Guardian article it linked to, the statement made about Dutton was not sufficiently offensive or derogatory.
2. Ben Roberts-Smith vs Nine Entertainment Co (The Age), Nick McKenzie, Chris Masters and David Wroe
Former SASR soldier and Victoria Cross Medal recipient Ben Roberts-Smith is suing The Age (owned by Nine Entertainment Co), current journalists Nick McKenzie and Chris Masters, and former journalist David Wroe, for reporting that he was involved in war crimes. Nine Ent. Co is using the truth defence and that the news is in the public interest.
What makes this defamation case even more interesting is that Roberts-Smith’s case is Kerry Stokes, who owns Seven West Media – a competitor to Nine Ent. Roberts-Smith is an Executive at Seven West Media.
UPDATE: This trial is underway again after being paused in 2021. Some really shady revelations about Roberts-Smith have come out so far. Witness testimony from soldiers he served with have revealed he: wanted to “choke a man to death”; intimidated witnesses in a war crimes inquiry; killed an unarmed. disabled Afghan; and told other soldiers to lie about watching him kick another Afghan man of a cliff. Incredibly that Roberts-Smith initiated this trial in order to clear his name.
FINAL UPDATE 1 June 2023: Justice Besanko has dismissed Roberts-Smith’s case – the newspaper have won. He ruled that journalists proved what they had reported was substantially true, particularly on some of the most serious claims of war crimes.
3. Craig McLachlan vs ABC and Nine Entertainment Co (Sydney Morning Herald)
Actor Craig McLachlan is suing two media outlets for reporting allegations that he had sexually assaulted, harassed and bullied co-stars in the 2014 production of Rocky Horror Picture Show.
McLachlan was found not guilty of sexually harassing his co-stars, although the judge on that case noted that had the current laws been applied (as opposed to 2014 sexual assault laws) that the ruling might have been different.
The ABC will argue that the claims were true, and already the defence documents they have submitted to the court have revealed three new harassment allegations against McLachlan.
FINAL UPDATE 20 May: Two weeks into the trial, McLachlan decided to drop the case. He will have to pay the costs of the proceedings up to that point, estimated to be around $3mill. McLachlan says he decided to abandon his case due to the strain it was causing his family. The colleague he was suing, Christie Whelan-Browne, said this should be “a reminder that women will stand up for themselves and each other, even when threatened by those more powerful.”
Maybe, just maybe the show has been engaging in casual racism for 30 years. 🤷🏽♀️
— Antoinette Lattouf (@antoinette_news) August 31, 2021
Erin Molan: “I don’t accept that I was engaging in casual racism. No, I was doing a Chinese accent, absolutely, that’s been part of the humour on the show for 30 years.” https://t.co/TdtTdN0aWN
4. Erin Molan vs Daily Mail Australia
Footy Show and radio host Erin Molan is suing Daily Mail Australia for labelling her racist in a story about her mocking a Fijian rugby players’ names by saying “hooka looka mooka hooka fooka.”
Molan claims that the story painted her as an “arrogant white woman of privilege” and that the subsequent coverage intended to damage her reputation. Daily Mail Australia intends to use the truth defence, and has submitted a 61-page dossier compiling at least 24 instances of Molan saying racist things or perpetuating racial stereotypes. These include:
- Multiple instances of Molan using various Asian accents, saying “me love you long time” in an Asian accent, and perpetuating harmful sexual stereotypes about Asian women
- Singing Fijian player Petero Ben Nakubuwai name as a substitute for the lyrics of ‘The Lion Sleeps Tonight’
UPDATE: The trial has concluded and Justice Robert Bromwich will deliver a verdict at a later date. He admitted his difficulty in evaluating this case on the final day of the trial, saying: “I don’t think you can get much higher levels of white privilege than an older male white judge. I’m quite challenged by this.”
FINAL UPDATE 30 AUG: Molan has won the lawsuit, with Daily Mail Australia to pay $150,000 in damages.
5. NSW Deputy Premier John Barilaro vs Jordan Shanks aka Friendlyjordies and Google
NSW Nationals Leader (and therefore Deputy Premier) is suing YouTube personality Jordan Shanks (aka Friendlyjordies) over a video titled ‘Bruz’. He is also suing Google for failing to remove the videos from YouTube.
In ‘Bruz’, Shanks outlines examples of alleged corruption by Barilaro… as well as portraying Barilaro as a series of Italian stereotypes that the politician claims are racist. No court dates yet, the defamation lawsuit has only recently been lodged.
Shanks’ video producer Kristo Langker has also separately been arrested and charged by NSW Police with two counts of stalking and intimidation for approaching John Barilaro twice and asking questions about the defamation lawsuit (once at a speaking event, the second after Barilaro had attended a funeral). The charges are being viewed as many as an attempt by Barilaro to intimidate Shanks to stop reporting on him.
Shanks has raised over $1 million in a crowdfunding campaign to fight his defamation charges.
FINAL UPDATE: On 5 November, Barilaro settled with Shanks and ended his defamation lawsuit. As part of the settlement, Friendlyjordies had to: apologise to Barilaro; edit the videos, but not remove them; pay for court costs (estimated to be around $100,000) but not pay damages to the Barilaro. As part of the settlement, Shanks agreed to stop selling ‘Bruz’ merchandise when Barilaro retires from politics (date of the by-election is still TBC). You can read the full statement from Shanks’ lawyers, Xenophon Davis here.
FINAL UPDATE PART 2: Barilaro won his defamation claim against Google for publishing the videos. Google will have to pay $715,000 in damages to Barilaro.
