I was in the classroom teaching media law when Justice Besanko delivered judgment in the defamation case brought by Ben Roberts-Smith. Our class was entitled Freedom of Speech in Australia. But could a philosophical examination of freedom of speech and its place in the Australian media law landscape connect with what promised to be the most consequential media law case of recent times?
We began the discussion with truth – a traditional rationale for protecting free speech. Truth as an ideal so often seems out of step with our disrupted and fragmented experience of the public sphere. Truth is often illusory or contingent. Yet as the summary of the judgment reveals, the Roberts-Smith case underscores the enduring significance of truth for public interest journalism and also the centrality of truth as a defamation defence, despite the fact that it is costly, complex and difficult to prove.
This can result in mixed and messy outcomes in defamation cases with social and political significance. Defamation is a private law cause of action with public law ramifications. Winners can appear as losers, perpetrators as victims and public understanding of the law’s function can be damaged in the process. This case is unusual in the clarity it offers.
Ben Roberts-Smith, a former media executive as well as a former elite special forces soldier, chose to bring these civil proceedings and is now judged to be a war criminal, bully and liar at the civil standard of proof – on the balance of probabilities. There are some inconvenient truths here – not only for the plaintiff, for the military and for institutions like the Australian War Memorial but for us all.
This important case reveals much about the operation of media law and its failure to protect media freedom. It highlights the reliance we place upon exemplary public interest journalism to ensure that our democracy functions and that our institutions and the powerful are held to account. Our media laws so often act to constrain rather than facilitate investigative journalism.
As Chris Masters has observed, they also entangle the practice of public interest journalism within a costly, slow, dangerous and often prohibitive web of subsequent litigation. This case itself may go on appeal. The costs involved for the media are unlikely to be fully recovered. And many investigations never survive the risk analysis involved in prepublication advice.
The story I told my class on Thursday about freedom of speech and its protection within the Australian legal system can underwhelm rather than inspire – in many ways it is a story of absence. As is well known, there is no express protection for freedom of speech found in the federal constitution. Indeed, there is no Bill of Rights.
Instead of the rights-based protections found at the international level, in regional frameworks and in other comparable domestic jurisdictions, we have an implied freedom of political communication – a largely negative common law conception of freedom of speech and the principle of legality to aid interpretation. Jacob Rowbottom has argued in the UK that “media freedom lies at the heart of media law”. By contrast, our legal system does not recognise media freedom.
The outcome of this defamation case illustrates why media freedom requires greater recognition within Australian media law. Given the bravery and credibility of the defence witnesses who came forward to testify in this case and the gold-standard journalism involved, truth was able to protect media freedom, in spite of a legal system which fails to account for it.
• Daniel Joyce is a legal academic at the University of New South Wales and an associate of the Australian Human Rights Institute
