How the Lehrmann v Network Ten Decision Unveils the Dual Challenges of Legal Truth and Public Perception

The defence of substantial truth in a defamation claim is an interesting one.

• As seen in the recent decision of Justice Lee in Lehrmann v Network Ten Pty Limited [2024]369, if a respondent pleads a defence of substantial truth in response to a defamation claim, the defamation proceeding essentially becomes a trial within a trial, because in order to determine whether or not a defence of substantial truth can be established, the Court will be required to determine, on a balance of probabilities basis, whether or not the imputation was truthful.
• This may consequently require a civil court to deal with matters which it might not otherwise typically deal with (such as criminal conduct). Whilst the burden of proof between a civil and criminal proceeding is different, in the Lehrmann case, Justice Lee was still required to consider and determine whether or not a sexual assault occurred.
• This means that, in addition to determining whether a publication was defamatory, a civil court may also need to make a finding as to a criminal matter.
• The outcome could be detrimental to an applicant where the determination of a criminal matter is assessed against a lower standard of proof but, to the general public, may carry the same negative impact as a criminal conviction.

This is precisely what we now see in the context of the Lehrmann case.

To view the judgement and more information find it here.