Christian Porter: ABC reporter Louise Milligan accused of deleting social media posts

Former attorney-general Christian Porter’s lawyers have outlined a number of complaints about the ABC journalist’s conduct.

Former Attorney-General Christian Porter seen outside the Supreme Court in Sydney. Picture: NCA NewsWire/Joel Carrett

The ABC’s star reporter Louise Milligan has been accused of deleting social media posts that could affect the outcome of Christian Porter’s defamation proceedings against the public broadcaster over an online article she filed revealing a senior cabinet minister was facing historic rape allegations.

The former attorney-general’s legal team has formally outlined a number of complaints about the journalist’s conduct leading up to and following the publication of the story on February 26; and also raised concerns her use of “encrypted messaging apps that have the capacity to automatically delete communications after a set period of time” might impinge on their ability to recover key conversations relating to the story’s production.

The allegations were contained in a letter sent to the ABC’s Head of Disputes & Litigation Team, Grant McAvaney, by reputational risk lawyer Rebekah Giles on March 23 following a federal court order that Mr Porter provide the broadcaster with “further particulars of identification, republication and/or aggravated damages” relating to his defamation action.

“It has come to our attention that Ms Milligan and perhaps the ABC have been deleting social media posts relevant to these proceedings which could go to issues of identification, aggravation, and malice, if it becomes relevant. In our view this is a serious matter that requires your urgent attention,” Ms Giles said in the letter.

ABC reporter Louise Milligan. Picture: NCA NewsWire/David Geraghty

“Over the last two weeks we have captured the social media pages of your clients. Any deletions will be immediately apparent. We request you let us know your position in relation to this matter.

“We have also been informed that Ms Milligan uses encrypted messaging apps that have the capacity to automatically delete communications after a set period of time. This is also of significant concern to us.

“We request that any such communications that have since been automatically deleted that are relevant to these proceedings be sought to be identified. We will expect such communications to be specifically listed in any list of documents and in answers to interrogatories.”

Ms Giles went on to request the ABC furnish her with a list of all alterations made to Milligan’s online report since it was first published, noting “we are instructed that the article has been amended at least once”.

“So that time and costs are not wasted we request that you now produce any earlier versions of the Article as they appeared on the ABC website,” she said in the letter.

Mr Porter publicly outed himself on March 3 as cabinet minister accused of sexually assaulting a woman – now deceased – in Sydney in 1988 but claims the online story had already identified him to potentially thousands of people even though he had not been named in it.

He has vigorously denied the allegations and spent most of last month on leave for his mental health before being moved out of the role of Attorney-General in a cabinet reshuffle this week.

Mr Porter launched legal action against the ABC and Milligan on March 15, claiming he had been subjected to a trial by media following the publication of the “false allegations against him”, and has retained a powerhouse legal team comprising Bret Walker SC, Sue Chrysanthou SC and Ms Giles to prosecute the case.

In her letter to the ABC, Ms Giles appealed to the public broadcaster to concede it had effectively identified Mr Porter as the subject of Milligan’s historic rape allegation story despite not publishing his name to avoid “wasting” money slugging it out in court.

“Many tens of thousands of dollars have already been and will be expended on the question of identification,” she wrote. “It is obvious that Mr Porter was reasonably identified as the subject of the Article.

“We request, in accordance with your clients’ obligations … that you give an early indication as to your clients’ position on the issue of identification before extensive further time and costs are wasted.

“We note that requires the ABC (amongst other obligations) to not cause unnecessary delay or cost, and to avoid, prevent and limit the scope of legal proceedings wherever possible.

“In particular the ABC is required to minimise costs by not requiring our client to prove any matter that it knows to be true. In our view the question of the identification of Mr Porter plainly falls into this category.”

Ms Giles noted that “Google searches of Mr Porter’s name increased significantly and much more so than any other senior male cabinet members” following the publication of the online article and that the ABC News’s political editor, Andrew Probyn, had admitted “the Minister’s identity was widely known in political and media circles” during a news report the day before Mr Porter self-identified.

To underscore the point, she offered a “sample list” of political and media figures who would have been able to identify the former attorney-general based on Milligan’s report, including Prime Minister Scott Morrison, former prime minister Malcolm Turnbull, Senator Penny Wong, former political staffer and advocate against sex harassment Dhanya Mani, The Australian’s Editor-in-Chief Christopher Dore and Editor-at-Large Paul Kelly, along with The Australian Financial Review’s editor, Michael Stutchbury, and his columnist Joe Aston.

“In addition to the classes of persons, there was an overwhelming number of members of the public who named Mr Porter as the minister the subject of the article but did not specify how they came to that knowledge,” she added.

“Some of those people contacted our client. The sheer number of such persons leads to the conclusion that his identification was reasonable even without knowing how each such person came to that conclusion.”

Addressing Mr Porter’s claim for aggravated damages, Ms Giles made 19 allegations regarding the conduct of the ABC and Milligan in reporting the historic rape allegations, including their “failure” to disclose to their audience that the alleged victim had not signed a police statement or reveal that her parents were concerned that “she may have confected or embellished the allegations” against the then Attorney-General.

Ms Giles further questioned the decision by the ABC and Milligan to leave the disputed article online “where it has been continuously published after Mr Porter has been plainly identified” and accused them of “disingenuous conduct … in claiming that they acted properly in their failure to put the allegations to Mr Porter prior to publication”.

She also singled out Milligan’s retweeting of a “despicable, unjustified and improper comment made by the former prime minister Malcolm Turnbull stating that there was a need for an inquest to question the complainant’s cause of death and suggesting that her death may not have been caused by suicide and had something to do with the cabinet minister the subject of the article.”

The ABC denied that Milligan had deleted any posts relevant to the Porter case and were fully aware of their legal obligations.

“The ABC and Ms Milligan understand their obligations to retain material relevant to the proceedings and are fulfilling these obligations,” a spokeswoman said.

“The suggestion that the ABC or Ms Milligan have deleted social media posts relevant to the defamation proceedings is strongly denied.”

The ABC has said it would be defending the defamation proceedings launched by Mr Porter and has been given until May 4 to file its defence with the federal court, with Mr Porter’s legal team to submit its response by May 11.