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Cut the spin. Porter’s defamation backdown vindicates the journalism of the ABC and Louise Milligan
Published on June 1, 2021
Senior Lecturer, UWA Law School | Consultant, Bennett + Co
By Michael Douglas
Christian Porter’s defamation crusade against the ABC and journalist Louise Milligan has come to an anticlimactic end.Porter has agreed to discontinue his defamation action.
The ABC article that was the subject of Porter’s ire was only published in February. (You can still read ithere.) Porter commenced his action in March. Just over two months later, it’s over.
The case ended by mutual agreement called a settlement. A settlement is a usually a good thing: it means the litigants spend less money on lawyers and taxpayers spend less money on the public infrastructure that supports such disputes.
From a defo lawyer’s perspective, Porter’s settlement with the ABC and Milligan—the ‘respondents’—is remarkable.
The respondents have not paid Porter any damages. They have not removed the article. And aside from the editor’s note, they have not withdrawn the ‘stings’ (the defamatory imputations, or meanings) that the article conveyed.
Porter can try to spin this however he likes. He was suing in one of the most pro-plaintiff jurisdictions in the world, with the most pro-plaintiff defamation law in the world, and he has given up.
The respondents may well have achieved an almost identical outcome to the situation they would have been in had the case proceeded through to judgment.In my opinion, had this gone all the way, the respondents would have won; they may have been a little bit out of pocket once the court dealt with their costs (because even if you win a court case, you rarely get all of your costs from the other side); and the article would have remained online. If the respondents went through to judgment, they could have been even more out of pocket than they are now after accounting for the costs of the lawyers necessary to defend themselves.
Christian Porter has been unequivocally, resoundingly defeated.
But on Monday he said to the press:
They conceded nothing of the sort. Rather,the ABC’s statement reads:
The respondents did not contendin the articlethat the serious accusations could be substantiated.But in their Defence—that is, in the court document which sets out why they are not liable—the ABC and Milligan contended that the defamatory meanings conveyed by the article about which Porter complained were substantially true.
Alternatively, they contended that Porter was relying on the wrong defamatory meanings in his claim, and that other meanings that were conveyed by the article were substantially true. The respondents said they could prove the substantial truth of the following:
Neither the ABC, nor Milligan, have retracted saying that there are reasonable grounds for suspecting that Christian Porter brutally anally raped a child. Nor have they apologised for it. To the contrary: they have done the exact opposite.
Does the following sound repentant to you?
Oras Milligan tweeted:
Porter commenced the proceeding on purpose and now he has discontinued it on purpose. We are yet to hear a satisfying explanation why.
Reject Porter’s spin
Porter’s case was a paradigm example of how politicians use defamation litigation in contemporary Australian politics: to attack opponents while appealing to the base.
Some media reporting of Porter’s case rallied certain members of the public to a certain account of the truth; an account that is compatible with his political ambition.
No doubt, by settling this case, Porter is hoping the media cycle will move on; that we will forget all of these allegations against him in the same way that we will forget those speeches in which he pretended to support freedom of speech.
I won’t forget.
More importantly: the friends of the woman whose accusations were the foundation of the reporting won’t forget.
And you should not forget. I hope you remember everything you know about Christian Porter up until the next Federal Election. And the next day, I hope you forget him forever.
Michael Douglas is an academic and a defamation litigation lawyer. His opinion is purely his own and does not represent that of any organisation with which he is affiliated.
Published By
Senior Lecturer, UWA Law School | Consultant, Bennett + Co
Last night, The Guardian and The Sydney Morning Herald asked me to write an opinion piece on Christian Porter's defamation failure. I wrote a piece for The Guardian and then later chose to pull it. The Guardian's lawyers were too worried about getting sued by Christian Porter and wanted me to delete the part of this article where I quoted directly from the Defence filed in the Federal Court that includes the word "rape". (Which I reckon is covered by the doctrine of reportage, but anyway.) And now I am too late for SMH. This little experience is a great example of how powerful people, like the former AG, can chill speech from critics like me even if they don't sue. (But if you want to,Christian Porter, come at me.) Views are reaaalllyyyyy my own on this one. I have a strong view and maybe you have a strong one that is different to mine.#auslaw"
