What Reynolds v Higgins Reveals About Defamation Law

Some commentators have framed the defamation trial of Reynolds v Higgins as a simple contest of credibility – a public reckoning between a former minister and a former staffer. But to reduce it to that overlooks the broader context. Beyond the media hysteria, the litigation highlights deep tensions within Australian defamation law, particularly around reputation, privacy, and institutional accountability.

The case not only exposes the exhaustive costs of reputational litigation and its potential for exploitation, but also the uncomfortable reality that proceedings of this nature often drag private and sensitive information into the public domain. More importantly, it demonstrates how institutions can use the law to shield themselves from reputational risk, while individuals are placed at an inherent disadvantage.

In this sense, Reynolds v Higgins is not just about defamation, but a lens through which the shortcomings of Australia’s reputational law are refracted.

Background: The Reynolds v Higgins Defamation Trial

Former WA Senator Linda Reynolds brought the civil suit against Brittany Higgins, claiming defamation over three social media posts. Reynolds alleged that Higgins orchestrated a campaign to destroy her political career.

The former senator argued that the posts trashed her reputation and caused her immense distress, particularly following a period of ill health.

Ms Higgins wrote the posts four years after she was raped in the then-senator’s office by her colleague Bruce Lehrmann. In them, she accused Reynolds of mishandling her allegation, continuing to harass her in the aftermath, and attempting to “silence” sexual assault survivors.

Justice Paul Tottle ruled that the posts were defamatory and ordered Higgins to pay $315,000 plus $26,000 interest, though one post was deemed an honestly held opinion and therefore a fair comment.

This ruling brought to an end a six-year saga of accusations and counter-accusations between the two women.

Defamation Law and Narrative Control

At its core, defamation law purports to vindicate reputation by compensating plaintiffs for demonstrable harm.

In practice, however, its symbolic function often overshadows its compensatory one. For Reynolds, litigation was not only about monetary damages but about reclaiming authority over a narrative that had spiralled beyond her political control.

The judge’s verdict in her favour, therefore, acted as more than compensation – it was symbolic currency to restore her reputation.

For Higgins, by contrast, the litigation became a matter of self-preservation. She endured exhaustive cross-examination, years of procedural attrition, and intense public scepticism. This contrast highlights the reality of reputational litigation: it is not a neutral adjudicator, but a tool of narrative control – disadvantaging those without institutional or financial resources.

Privacy and Defamation: A Structural Problem

One of the most striking aspects of the trial was the degree to which intensely private matters became judicial currency.

Higgins’ medical history, personal communications, and confidential workplace deliberations were all interrogated in open court. In order to defend her credibility, she was compelled to relinquish control over the most intimate aspects of her life – material most would consider beyond legitimate public scrutiny.

This is not incidental but structural. Defamation proceedings, by design, invite discovery of documents and testimony that delve into litigants’ private lives. Ironically, in trying to preserve their dignity, litigants often sacrifice another dimension of it: their privacy.

The Privacy Gap in Australian Law

The entanglement of defamation and privacy underscores a systemic gap in Australian law.

Unlike the UK, which recognises a tort of misuse of private information, Australia has no coherent cause of action for privacy intrusions. Plaintiffs are therefore forced to shoehorn grievances into defamation or breach of confidence, even when the injury stems from truths that are simply too personal for public consumption.

While amendments to the Privacy Act 1988 (Cth) have introduced a statutory tort for serious invasions of privacy, there is little judicial guidance on how this will operate in practice. For context on statutory and common law intersections, see the ALRC discussion.

The High Costs of Defamation Litigation in Australia

Defamation proceedings in Australia are notoriously expensive and time-consuming. Multi-week trials, large legal teams, and endless interlocutory disputes can inflate costs into the millions.

For plaintiffs backed by institutions such as ministers, corporations, or broadcasters, these costs are often seen as a worthwhile investment. But for individual defendants, the financial risk is devastating.

Even before litigation began, Higgins faced immense emotional strain and relentless public scrutiny. To then endure years of adversarial proceedings – culminating in a devastating financial judgment – reflects the profound asymmetry of access to justice.

This imbalance extends far beyond the courtroom. Journalists, whistleblowers, and survivors of misconduct are forced to weigh the risk of financial attrition before speaking out. Many retreat into silence. The result is a muted civil space shaped more by fear of litigation than by the robust public discourse defamation law claims to protect.

Institutions Using Defamation to Protect Reputation

Reynolds v Higgins also demonstrates how litigation functions as a defensive strategy for institutions.

Although framed as Reynolds’ personal response to reputational harm, the institutional implications were clear. Parliament itself was indirectly on trial – accused of mishandling sexual assault allegations and fostering a culture of indifference.

By suing Higgins, Reynolds was not only seeking vindication for herself but also contesting broader narratives of dysfunction within Parliament.

Institutions frequently deploy law in this way – not as neutral dispute resolution but as a means of protecting authority. The recent dispute between the ABC and journalist Antoinette Lattouf reflects a similar pattern. In both instances, institutions wielded legal mechanisms to defend their credibility, leaving individuals to bear the emotional and financial costs.

Defamation in the Age of Social Media

The trial also highlighted how ill-suited traditional remedies are in the digital age.

Courtroom testimony and legal pleadings were disseminated instantly online, amplified across platforms, and reframed by public debate. Regardless of the judgment, reputational harm had already occurred – etched permanently into the digital record.

This dynamic undermines the logic of defamation remedies. Damages may compensate in theory, but they cannot erase viral content or undo global commentary. Injunctions, likewise, are ineffective once allegations spread online.

Australia’s legal system is attempting to regulate reputational harm with tools designed for a pre-digital era. See also the Uniform Defamation Laws (Model Provisions) and the rolling Stage 2 reforms overviewed by several state law bodies, including the Attorney-General’s Department.

Future of Defamation Law Reform in Australia

Ultimately, Reynolds v Higgins is more than a dispute between two individuals.

It is a case study in the shortcomings of Australian reputational law. This system is too costly, too invasive, and too easily leveraged by institutions seeking to protect their legitimacy.

The case serves as a reminder that reform is urgently needed if Australia is to strike a better balance between reputation, privacy, and freedom of expression.

Need to talk through your options?

If you’re considering your options regarding defamation, privacy, or related issues, you can call us on +61 2 9283 5599 or complete the free and confidential callback form below. We treat all enquiries with care and discretion.

News