“The article…was, at best, malicious gossip which was not even investigated,” the letter reads. “There was no basis to allege that any relevant sexual misconduct took place merely because our clients are said to have met when Mrs Groth was 17.
“Mr Groth has not been charged with any crime, or even investigated or questioned by police. It would be too kind to describe the article as ‘gutter journalism’ because it did not amount to ‘journalism’ at all.”
Sam Groth and wife Brittany.Credit: Getty
If the matter goes to court, it will serve as a high-profile test of Australia’s new privacy protections brought in by former attorney-general Mark Dreyfus.
Under the tort for serious invasions of privacy, a person can take action against individuals and organisations for either physically intruding on their private space or misusing information that relates to them in circumstances where they have a reasonable expectation of privacy.
Loading
The laws contain a defence for journalists.
To win in court, the Groths would need to show that the invasion of their privacy caused by the Herald Sun was serious, either intentional or reckless, and that the public interest in protecting their privacy outweighs any countervailing public interest, such as freedom of media.
Under the privacy tort law, the Groths do not have to demonstrate loss to be awarded damages. A court can also grant an injunction or order an apology.
The concerns letter says that, if the allegation was true that Brittany Groth, as a child, was a victim of sexual assault, disclosure of her identity would be a criminal offence.
Loading
“Naming and shaming an alleged victim of sexual assault, a child at the time no less, is a grotesque act,” it says.
“It is incomprehensible that one of Australia’s largest media organisations did so without any notice to Mrs Groth, without any care for how she would feel about her sex life being discussed publicly, how shamed she would feel to be identified as a victim or alleged victim of a sexual crime, or how it would impact her children.”
The Groths are being represented by defamation expert Patrick George and barrister Sue Chrysanthou, SC.
They offered to abandon their legal action if the Herald Sun removes the stories from online by 5pm Wednesday, undertakes to never republish them and issues an apology for publishing “disgraceful gossip about Sam and Brittany Goth”.
The initial Herald Sun article, by reporter Stephen Drill, claimed that unnamed Liberals had previously questioned Groth about the origins of his relationship with Brittany amid concerns the issue may be weaponised by political opponents.
The article claimed that at the time the pair began their relationship in 2011, Brittany was aged 16 or 17 and Sam was either 23 or 24 and coaching at her local tennis club.
The Groths.Credit: Instagram
Although the age of consent is 16 in Victoria, it is a criminal offence to have sex with someone under 18 if they are under your care or supervision.
The Groths married in 2018 and have twin four-year-old sons.
At a press conference on Wednesday, Allan declined to comment on the Groths’ relationship. “Families shouldn’t be dragged into politics,” she said.
However, her colleague, Health Minister Mary-Anne Thomas, was less reticent.
“If you’re asking me whether I think it’s appropriate for a person that is in a position of influence or authority, like a teacher or coach, to be dating a teenager, then the answer to that is no,” she said.
The Morning Edition newsletter is our guide to the day’s most important and interesting stories, analysis and insights. Sign up here.