Lehrmann v Network Ten Pty Limited (Livestream) [2023] FCA 1452
The Bruce Lehrmann defamation trial is currently before the Federal Court of Australia, being heard in Sydney. It is attracting extensive media attention and social media commentary. Mr Lehrmann is suing Network Ten and journalist Lisa Wilkinson for defamation in relation to an interview with Brittany Higgins in 2021. Mr Lehrmann alleges that during the televised interview, he is accused of raping Ms Higgins.
Prior to the commencement of the trial, Justice Lee was asked to determine whether it was appropriate for the proceeding to be livestreamed on YouTube. Network Ten objected to the proceeding being livestreamed and proposed that the proceeding only be available to journalists, solicitors and those who made a formal application to the Court for access. Mr Lehrmann’s express preference, on the other hand, was for the hearing to be livestreamed.
Justice Lee decided that the proceeding should be livestreamed.
His Honour arrived at this decision by reference to the general principle that, ‘the openness of the judicial branch of government in this country is a basic democratic right which the courts should actively support’. [1] Further, His Honour remarked that since COVID-19, the well-accepted principles of open justice have had to adapt to changing technologies, ‘to meet the challenges of the day’ and that livestreaming proceedings online is consistent with the need to facilitate and encourage public access to justice. Perhaps unsurprisingly, Justice Lee also referred to the well-known aphorism that ‘justice should not only be done…but should be seen to be done’.[2]
Network Ten raised four (4) arguments in support of its (ultimately unsuccessful) position that the proceeding should not be livestreamed.
Firstly, it was said that the Lehrmann trial had already received significant media attention which had been ‘intrusive, offensive and no doubt distressing to its targets’ and that livestreaming the proceeding may present risks to the personal safety of those involved in the trial. Justice Lee acknowledged this risk but observed that any such interference which occurred could be appropriately dealt with under contempt of court, noting that ‘open justice should not yield to hypothetical risks of abuse by bad actors’.[3]
Secondly, it was said that because the defamation trial involved an alleged sexual assault, regard could be had to special procedures adopted in criminal trials when taking the evidence of a sexual offence complainant (which included closing the court for this type of evidence). Justice Lee observed that the trial involved a ‘mosaic of competing considerations’ but that ultimately Mr Lehrmann’s defamation action was a civil trial and that the default position should apply whereby open public access is given.
Thirdly, Network Ten asserted that a livestream of the proceeding might prejudice Mr Lehrmann’s right to a fair trial in any future criminal proceedings against him. In rejecting this argument, Justice Lee noted that Mr Lehrmann’s express preference was for livestreaming to occur.
Fourthly, it was said that members of the public could be properly informed of the proceeding because it would otherwise be widely reported and scrutinized. Justice Lee noted that specialised and experienced court reporting had declined in recent times and it was not correct to assume that members of the public could be properly informed about the proceeding ‘through the prism of media reporting’.
The decision of Justice Lee serves as a timely reminder of the supremacy of open access to justice and court proceedings. The decision is a clear statement that Courts will not infringe upon the transparency of court proceedings without a very compelling reason to do so. Issues such as embarrassment, stress or reputational damage will generally not be sufficient.
Interestingly, during the course of the hearing on 30 November 2023, Justice Lee appears to have become aware of critical and abusive social media commentary relating to counsel appearing at the trial. Justice Lee reiterated that conduct of this kind would not be tolerated and that should it persist, the Court would reconsider whether it was appropriate for the proceeding to continue to be livestreamed.
[1] Reasons, paragraph [5].
[2] R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256.
[3] Reasons, paragraph [19].