Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/30

 cross-examination, his solicitors, despite their best efforts, could not locate any Tweets around the time of the broadcast which named Mr Lehrmann as the subject of the Project programme, save for a Tweet published by True Crime Weekly (Ex 7; T484.33–485.33) together with some articles on a website "Kangaroo Court of Australia" (Ex 4, 5 and 6).

84 All of this, including Mr Lehrmann's evidence as to being contacted on social media following the broadcast, reflects very modest social media dissemination compared to other defamations provoking speculation as to identity.

85 It was less a firehose and more the splutter of an insecurely fastened sprinkler.

86 Before leaving the topic of identification, for completeness, it is worth dealing with a discrete point made by Ms Wilkinson.

87 In her written and oral closing submissions, Ms Wilkinson referred to a number of authorities concerning "small group identification" and, in particular, the decision of Hunt J in McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 as authority for the proposition that in circumstances where there is a small group of persons referred to in an impugned publication, the matter is incapable of conveying an imputation of guilt unless it impugns every member of the class (at 488D–491D). In short, Ms Wilkinson submits this is relevant because Mr Lehrmann has not excluded the possibility that viewers reasonably identified him as one of a small group of persons who could have met the description of the alleged perpetrator, namely Mr Jesse Wotton, who worked for Senator Reynolds in March 2019.

88 I do not accept this submission, for the following reasons.

89 First, there were identifying facts which, for those armed with special knowledge, would have ruled Mr Wotton out as the alleged culprit; namely: (1) Mr Wotton did not leave Senator Reynolds' office in March 2019; and (2) Mr Wotton was not working in Sydney in February 2021. Secondly, although not determinative of the question of identification by others, it is telling that when asked whether he was concerned that people might think he was the subject of Ms Higgins' allegations, Mr Wotton gave evidence that he was not concerned because he was "quite confident in the fact that people [knew me well] … or were in a position to find out should they make their own inquiries" (T1092.32–37). Thirdly, prior to broadcast, Network Ten successfully took steps to guard against confusion with any other male who Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369