The case will depend on defamation laws that Porter himself has argued unfairly constrain media freedom. Laws which are about to change to further protect investigative journalism. And it will be heard in the Federal Court—a court to which Porter has appointed many judges. A court that is part of Porter’s portfolio as AG.
If this all seems hypocritical to you,that is because it is.
The case will produce a number of tricky legal issues. First,the publication does not explicitly identify Porter. The law allows for indirect identification but there might still be a stoush over the issue.
The court will have to consider:would an ordinary,reasonable reader of the article know that it was about Porter? I knew,but I am a nerd. The court won’t take a straw poll—it will apply a hypothetical standard to answer the question.
Porter will likely appeal to the ABC’s prior reporting on Porter’s alleged relationships and conduct to make out the idea that readers would know the February 26 article was supposed to be about him.
Second,the article merely reported on allegations. It did not explicitly adopt them. Did it nonetheless convey the idea that the allegations had some substance to them? As was said in a famous case long ago,“[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire”.