The law of Defamation has always posed a precarious tightrope for news reporters to walk. The press plays a critical role in informing the public and serving the interests of the free and unfettered reporting of current events. However, in doing so, journalists and media outlets must ensure they never tiptoe over the line between fearlessly reporting the facts and wantonly, unfairly defaming those individuals and others who may be caught up in the story. It’s a constant tension that bedevils the world of news publication, and raises the crucial question – What legal boundaries constrain the media, and how far can publications go before crossing the line into reputational harm?
In in recent years, the role of professional communicators has been fundamentally reshaped by a series of high-profile court cases which have broadened the scope of what can be considered acceptable reporting, and clarified what practices they qualify as the permissible dissemination of information in the public interest.
The controversial and much-publicised defamation case brought by former highly respected Australian soldier and Victoria Cross recipient, Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, it was made clear that that journalists are fully entitled to report on highly contentious matters – in that case war crimes allegedly committed in a foreign theatre of war – provided in the process of doing so they meet rigorous evidentiary standards.
In 2018, various media outlets published reports detailing allegations of war crimes committed by Australian special forces in Afghanistan. Among these were claims that Ben Roberts-Smith was responsible for three unlawful killings of Afghan nationals protected under the laws of armed conflict. In response, Mr Roberts-Smith sued the various media entities for defamation.
In their defence, the respondents, Fairfax Media, The Age, The Sydney Morning Herald, and The Canberra Times, argued that the imputations were substantially true and relied on the defence of contextual truth regarding related imputations.
Ultimately, Federal Court Justice Anthony Besanko found that the respondents had established the truth of their allegations, supported by multiple eyewitness accounts. In doing so, the judge made adverse findings regarding the credibility of many of Mr Roberts-Smith’s witnesses and concluded that the requisite standard of proof had been met. As a result, the defamation claim failed.
This landmark case underscored the balance courts must strike between safeguarding an individual’s reputation and protecting robust, public interest journalism, particularly on serious matters like alleged war crimes, and highlighted the ethical and evidentiary standards modern journalism is called to uphold.
Roberts-Smith appealed the decision, arguing that the primary judge had attributed insufficient weight to the presumption of innocence, effectively shifting the burden of proof. However, the appeal Justices of the Full Federal Court unanimously dismissed the appeal, finding the evidence provided by the respondents to be sufficient to support the findings and concluding that any errors made by the primary judge were inconsequential.
By way of contrast, in the 2023 defamation case of Heston Russell v Australian Broadcasting Corporation (ABC), the applicant – a highly-decorated Australian Special Forces veteran – sued the ABC over allegations relating to unlawful killings in Afghanistan in 2012. That case, the court ruled that, unlike the respondents in the Roberts-Smith case, the ABC could not rely on the public interest defence, as it lacked sufficient evidence to substantiate the defamatory imputations upon which it relied. The two contrasting cases demonstrate the complex and ever-evolving legal landscape surrounding defamation in this country, and the heightened ethical and evidentiary standards now expected of professional communicators.
Contemporary defamation law in Australia aims to strike a more equitable balance between the protection of individual reputations and the need to uphold press freedom, underscoring the obligation of those who engage in public discourse to do so with a commitment to truth, accountability, and the public interest. Only time will tell whether that balancing act will prompt a shift on the part of the press towards greater rigour in strategic journalism, substantiating allegations with credible evidence becomes essential, or journalists starting to push more the boundaries that test what is permissible in the name of public interest?
