When giving interviews on high-profile defamation cases, journalists commonly ask, “How significant is this case?” Lawyers approach that question with the law in mind. Did the case change the law?
With respect to Ben Roberts-Smith’s lawsuit, the legal answer is anticlimactic: we don’t know yet. The reasons for Justice Besanko’s decision have been suppressed while government lawyers ensure they wouldn’t undermine our country’s national security interests. We will know more in a few days.
The case likely won’t be legally interesting. It seems to have turned on some settled principles. For example, you won’t win in a defamation claim if the person you are suing proves that what they said about you was substantially true. This “justification” defence is enshrined in statutes in force throughout Australia.
With respect to the most serious allegations, that’s what the media respondents did here. For example, they proved, on the balance of probabilities, that the allegation “BRS kicked a man off a cliff” was substantially true. In fact, the court decided that most of the “imputations” — the meanings carried by the articles about BRS — were substantially true.
The court did not find that all the imputations were substantially true. The media respondents failed in their justification defences with respect to allegations of domestic violence. They did ultimately succeed even on those domestic violence allegations, however, through another defence imputation’s “contextual truth”.
The contextual truth defence is tricky, but it means the publications carried meanings other than those about the domestic violence that BRS sued upon, those other meanings hurt BRS’ reputation more than the domestic violence imputations, and those other meanings were substantially true.
Even if the case is not legally interesting, of course, it was still interesting. Let’s not kid ourselves why.
This was a soap opera for politics and law nerds, a WWE main event with pleadings and particulars rather than piledrivers and powerbombs. Watching a national hero fall from grace was MAFS-esque. We just gasped together as we watched the season finale — the babyface turned heel!
Of course, media people are absolutely frothing over the outcome. Nine’s managing director James Chessell went so far as to call the judgment “a pivotal moment in history”. Puh-lease. Your guys won, but that’s a bit dramatic.
This decision will cause some cash to move between media organisations’ bank accounts. Seven Network chairman Kerry Stokes, who bankrolled the BRS case, is probably pretty bummed out, sitting in one of his multimillion-dollar homes quaffing whatever rich guys quaff.
Fair bump, though: if the media respondents end up getting indemnity costs, the court order to follow could dwarf Australia’s largest defamation damages awards.
Real accountability will come through legal fora other than this defamation circus. The Brereton Report was a bigger deal: it was commissioned in 2016, years before the publication of the articles that BRS sued over.
So is the case that significant? It shows defamation law is perhaps not as great a threat to public interest journalism that some may suggest. Journalists were willing to put their necks on the line before this case; they would back themselves to defend defamation litigation.
The BRS judgment may embolden some in the media to speak truth to power. They can do so knowing that they will have the shield of a new defence of “publication of matter concerning issue of public interest” that is now in force throughout much of Australia. That defence was not in force at the key times for the BRS case, and the media won anyway.
The biggest impact of this case may be what it does for the psychology of would-be defamation plaintiffs.
Back in 2003, Barbara Streisand was upset that her Malibu mansion was being photographed. She sued to protect her privacy and suppress publication of the photo. In doing so, she just drew attention to the photo’s existence, spawning the term the “Streisand Effect”: a shorthand for the unintended consequences of attempting to suppress something.
Ben Roberts-Smith’s case is significant: it is the new archetype of the risks associated with suing for defamation. The case became a platform for the media to perform a public execution of his character. Had he just said, “It is all lies, I am not going to give this coverage dignity by discussing details”, perhaps the world would have moved on.
Commencing this action was a political miscalculation by BRS and a poor business decision by those who helped him pay for it. The legacy will be the “Roberts-Smith Effect”: when suing in defamation makes your reputation even worse.
