Justice Anthony Besanko’s dismissal of Ben Roberts-Smith’s defamation claim against the Sydney Morning Herald, the Age and the Canberra Times is a complete victory for the newspapers and their journalists. It is also a devastating and self-inflicted blow to Ben Roberts-Smith’s reputation.
Besanko found that a clear majority of the imputations pleaded by Roberts-Smith were substantially true. The imputations could hardly have been more serious: Roberts-Smith is a murderer and a war criminal.
The remaining imputations that were not proved to be true could be relied upon, the judge held, to establish a fallback defence of contextual truth. Contextual truth requires the court to weigh the true statements published against the false statements made about the plaintiff. If the true outweighs the false, overall no damage is done to the plaintiff’s reputation and the publisher has a complete defence.
Australia’s defamation laws have a reputation for being plaintiff-friendly. The common experience of publishers in high-profile defamation cases is that they lose and are required to pay substantial damages. So for these newspapers to establish a complete defence of truth is significant. It is even more significant when you consider the number and seriousness of the allegations and the complexity of the evidence in this case.
By relying on truth as their defence, the newspapers in the case put the focus in the trial on Roberts-Smith’s reputation. Were the allegations they published about him true or not? Had the newspapers relied on the alternative defence of statutory qualified privilege, it would have been on the reasonableness of the journalists’ conduct under intense scrutiny. It was a risky strategy, and one of the few available to the publishers, given the state of the defamation law that applied to the publications, but it worked. (Since the time of the publications, a free-standing public interest defence to defamation has been introduced across Australia, except for Western Australia and the Northern Territory.)
There are not just risks for publishers. Suing for defamation is risky. No one forces a plaintiff to sue for defamation. Suing for defamation is a choice. It may be that sometimes the allegations published are so serious, that a plaintiff thinks that they have no choice but to sue. But they always have a choice. And the choice carries with it risks. Once the trial begins, it is not possible for the plaintiff to control what may come out in court, as Roberts-Smith learned.
Perhaps the biggest risk in defamation litigation is the cost. This case involves huge costs, reportedly $25m. Had the newspapers lost, they would have been liable for costs. Now Roberts-Smith, and possibly his backers, will have to foot the bill.
But for the media, the risk of expensive litigation comes on top of the substantial costs already involved in their work. There can be no doubt that the stories the newspapers published were serious investigative journalism on matters of high public interest. Exposing real or suspected misconduct is a vitally important function of journalism. This kind of journalism should be encouraged, not discouraged. Yet investigative journalism is resource-intensive and expensive. Adding the risk of costly defamation litigation on top of the cost of the actual journalism acts as a disincentive for media organisations from undertaking this kind of journalism. And the Australian public would be the poorer for that.
Although the threat of defamation litigation remains, hopefully the newspapers’ comprehensive victory in this case will provide a small fillip for media organisations to invest in serious public interest journalism in the future.
David Rolph is a professor at the University of Sydney law school, specialising in media law
