Journalists and the Harman Undertaking
In a recent episode of the ABC’s Insiders television programme, there was a lively discussion amongst the host and the panel of journalists about the publication in the preceding week on Channel Seven’s Spotlight current affairs programme and in other media outlets of material produced under subpoena in R v Lehrmann, the criminal proceedings against Bruce Lehrmann for the alleged rape of Brittany Higgins.
The material published by Spotlight as part of a sensational interview with Mr Lehrmann included excerpts of a five hour audio recording of a meeting between Ms Higgins, Ms Higgins’ partner (David Sharaz), journalist Lisa Wilkinson, and Channel 10 producer Angus Llewellyn; text messages from the mobile phone Ms Higgins provided to the AFP when she made her complaint in 2021; and CCTV footage taken at Parliament House on the day the alleged rape was said to have taken place. The Australian newspaper, news.com.au, the Daily Telegraph, Sky News and the Daily Mail were amongst other media outlets that published some of this material.
As noted, the material was produced under subpoena in the criminal proceedings and was not admitted into evidence. It was not, therefore, public. Material obtained in this way is protected by the so-called Harman undertaking. The Harman undertaking is implied and binds parties to court proceedings and prohibits the use of material for a collateral or ulterior purpose, unless released by the Court from the undertaking, tendered in open Court or admitted into evidence.
One of the Insiders’ panelists, Samantha Maiden, an experienced journalist and the political editor for news.com.au, used an evocative turn of phrase to explain the Harman undertaking to viewers. She said:
“the Harman principle is that if you receive material under coercive subpoenas in one Court, you can’t just hand it out like it’s in a chum bucket...” Ms Maiden went on to say “[b]ut this is a complex argument because when we talk about the Harman principle, the Harman principle applies to the lawyers, and the people that take possession of that [i.e. the material produced under subpoena] right? As a journalist, if you are leaked that information, well you’re leaked that information, the Harman principle does not apply to you. And I think that there is a public interest in some of the material that has come forward…”
Is Samantha Maiden correct? Are third party recipients of material produced under compulsion in legal proceedings, such as journalists, immune from the operation of the Harman undertaking?
While the Harman undertaking may not apply to third party recipients of the material (including journalists), if they receive and use the material knowing that it was disclosed in breach of the Harman undertaking, such third parties may be liable for contempt.
This is because by aiding and abetting others to commit contempt, they have interfered with the administration of justice. The third party’s knowledge is key to this form of contempt. Whether publishing the material is in the public interest or not is immaterial and will not protect journalists from a finding of contempt in these circumstances.
As has been widely reported, Bruce Lehrmann is suing Channel Ten and Lisa Wilkinson for defamation in relation to Ms Wilkinson’s interview of Ms Higgins which was broadcast on the Project in February 2021. In a case management hearing in those proceedings on 9 June 2023, the barristers for Channel Ten and Ms Wilkinson told the Federal Court that media coverage relying on material that had been produced under compulsion during Mr Lehrmann’s criminal trial, but which was never tendered, amounted to a “calculated” campaign which was being waged to dissuade witnesses, including Ms Higgins, from giving evidence in the defamation trial. Ms Wilkinson’s barrister told the Court that her client’s solicitors had written to Channel Seven criticising them for not seeking comment from Ms Wilkinson prior to publication of the Spotlight interview with Mr Lehrmann, which they say was deliberate because alerting Ms Wilkinson to the fact that they had the leaked documents would have led to an application for an injunction.
On the same day, news.com.au published a widely shared article (Simple truth emerges as Brittany Higgins texts are leaked) by Samantha Maiden in which she asked:
“how can it not be a threat to the administration of justice if complainants in sexual assault matters see what might happen to their phone when it is handed to police?”.
A good question.
Attorney-General Mark Dreyfus voiced similar concerns to the House of Representatives, in response to a question from the Member for Warringah about whether media organisations should be subject to stricter privacy standards (something they will no doubt strenuously resist):
“As Attorney-General, I am deeply concerned about the apparent unauthorised publication of material produced as a result of a subpoena in the criminal trial of Mr Bruce Lehrmann. Material produced to a court in response to a subpoena is subject to an implied undertaking from the parties who receive it that it won’t be used for purposes other than for those court proceedings. It’s a rule known as the Harman rule or the Harman undertaking. To breach it may constitute a contempt of court. I do understand that the Australian Federal Police has received a complaint in respect of this matter and that the AFP is currently assessing that complaint. In terms of my own portfolio, I’d say this: it’s vital that victims of alleged sexual assault have confidence that, if they come forward and report what happened to them, they will be treated fairly by our justice system.”
It has subsequently been reported that Ms Wilkinson has lodged a complaint with Channel Seven about the Spotlight program and may escalate her complaint to ACMA if it is not resolved.
Lawyers for Network Ten, Ms Wilkinson and Ms Higgins have raised concerns with Channel Seven, the ACT Director of Public Prosecutions, the ACT Supreme Court and the AFP that Seven appeared to have improperly used evidence from R v Lehrmann in the Spotlight program.
Journalists should exercise caution when they receive documents (or information derived from documents) obtained for the purpose of Court proceedings. They should check how the material was obtained (noting that it is not just material produced under subpoena that is protected by the Harman undertaking) and whether it was admitted into evidence. Not being a party to proceedings will not necessarily protect journalists from a finding of contempt if they knowingly publish material to which the Harman undertaking applies.