Bruce Lehrmann’s defamation case is shaping up as something far more important: it could be a turning point in the way the media and the courts deal with breaches of confidence.

And this is all due to an unlikely change agent: former Seven network producer Taylor Auerbach, who burned his former employer as well as Lehrmann by asserting that Lehrmann provided Seven with confidential material.

If Auerbach’s statements are found to be true, it provides an extraordinary insight into what he and Seven did to persuade Lehrmann to tell his story to a national television audience.

Auerbach’s accusation is not pretty. It involves drug use and indulgence on a grand scale. But it needs to be treated with caution. His assertions are untested. He left Seven after the network declined to renew his contract. He made a claim for a psychiatric injury.
But if his narrative turns does out to be true, it will have a devastating impact not just on Seven, but on Lehrmann’s future prospects and, more importantly, on public confidence in the media’s ability to protect confidential sources of information.
The protection of confidential sources is one of the most fundamental precepts of journalism. It is essential if the news media is to fulfil its responsibility of revealing information in the public interest that others would prefer to keep secret. But confidentiality is also essential to the criminal justice system. It means evidence collected during legal proceedings remains confidential unless it is used in court.
Breaches of that obligation can result in convictions for contempt of court.
If Auerbach’s story is true, this is what Lehrmann was risking when he disclosed information to Seven that had not been used in court.
Auerbach’s actions might indicate he is preparing to embark on a career outside the news media.
If that is the case, he would not be the first person to seek new challenges after coming into contact with the litigation juggernaut that has its origins in the accusation against Lehrmann that was made by Brittany Higgins.
Shane Drumgold resigned as the ACT’s Director of Public Prosecutions after an inquiry made adverse findings about his handling of the rape case that was aborted because of juror misconduct. He sought judicial review of those findings, and the Supreme Court found that conduct of the inquiry’s chair gave rise to a reasonable apprehension of bias.
Lehrmann has denied any wrongdoing.
Auerbach’s assertions mean the Federal Court will need to come to terms with two conflicting duties of confidentiality – both of which may well have been breached.
Lehrmann was under an obligation to the ACT Supreme Court not to leak confidential information that had been assembled but not used at the criminal trial; and a journalist has a professional obligation not to reveal the identity of a source if they have promised to keep it confidential.
It is unclear whether Auerbach made such a promise.
All that needs to be weighed against the fact that Seven sees things differently. A spokesman on Tuesday said the network had never revealed its source or sources and had no intention of doing so.
It noted that Lehrmann had denied in court he was Seven’s source. If the judge sides with Auerbach and makes a clear finding to that effect, it means the focus will again turn to the authorities in the ACT.
Will they brush such a finding aside, as they did when Ten complained last year to the ACT police about what it considered to be leaks of material covered by the obligation of confidentiality to the court?
For Lehrmann, there is another potential problem.
He is studying law but his future as a lawyer could be in doubt if Justice Lee accepts the Auerbach assertions.
Ten has argued that they mean Lehrmann gave false evidence and had engaged in an extreme abuse of process by giving Seven material that was covered by the obligation of confidence he owed to the ACT Supreme Court. This, according to Ten, deserves to be referred to the proper authorities for prosecution.
If Lehrmann is found to have given false evidence, his prospect of being admitted to legal practice would be bleak – regardless of whether that is followed by any action alleging contempt.
For those in the news media Auerbach’s assertions could have a lasting impact. People who would otherwise have made confidential disclosures to the media might now think again.
And who could blame them?
This goes far beyond what this case was supposed to be about: whether Network Ten and journalist Lisa Wilkinson had defamed Lehrmann by implying he had raped Higgins.
There is, however, one positive aspect to this affair.
After Higgins took her accusations to the media and eventually won a payout from the government of $2.4m, some might have viewed trial by media and public relations as a smart way of dealing with a dispute.
But Lehrmann, who also took his grievances to the media, might have gone too far.
He is now confronted by a potential disaster that could eventually prevent him from practising law.
Higgins might have $2.4m, but the procedures inside the government that led to that payout are opaque, like much of what happens in Canberra. They have been referred to the National Anti-Corruption Commission.
The bottom line for Higgins, Lehrmann and all those who have been engulfed by this affair must now be clear: trial by media and PR is not the way to achieve a lasting solution to accusations of wrongdoing.
That is the job of the justice system.