The Ben Roberts-Smith and Fairfax defamation proceedings have been some of the most widely reported, controversial, and expensive in Australian legal history. Aside from the matter’s unique facts, the decision of Federal Court Justice Besanko provides insights about rarely successfully pleaded defences by media defendants: justification and contextual truth.
Background
In 2018, Fairfax Media outlets The Age, the Sydney Morning Herald and Canberra Times published a series of articles detailing serious allegations against former SAS war hero Roberts‑Smith, including the commission of serious war crimes, bullying, threats and intimidation against other soldiers, and domestic violence. In 2020, Roberts-Smith brought three defamation claims against Fairfax and two journalists, claiming the publications were defamatory of him. The three claims were heard together.
After a sensational 100 days of evidence, Besanko J found the media respondents had established the substantial truth or the contextual truth of a majority of the imputations found to have been conveyed by the media reports sued on. Only two imputations were found not to be substantiated.
Justification
The defence of justification or substantial truth provides a defence to a defamation claim if the imputations complained of can be proved substantially and objectively true. Justice Besanko described the defence as being ‘concerned with meeting the sting of the defamation’.[1]
His Honour found the evidence largely supported the respondents’ claims, and made damning findings about Roberts-Smith’s credibility, describing that he had multiple motives to lie and was ‘not an honest and reliable witness’.
Contextual Truth
Contextual truth provides a defence where imputations, while not sufficiently proven to be substantially true, cause no further harm to reputation due to the substantial truth of the other, more serious imputations. In arguing against the defence, Roberts-Smith contended the proposition that a person’s reputation has different ‘sectors’ that are so separate that even a severe blow to one aspect will not necessarily affect the other.[2] Justice Besanko rejected the contention, finding that all the imputations related to violent conduct toward a vulnerable person, and were therefore sufficiently similar. His Honour held that the imputations he had found substantially true were ‘so serious that the applicant has no reputation capable of being further harmed’.[3]
Roberts-Smith lodged a wide-ranging appeal against the decision on 12 July 2023.
Comment
This lengthy decision represents a significant win for news media pursuing investigative reporting, and for the well‑being of the defences of substantial truth and contextual truth in the ever-evolving media landscape. The case also perhaps represents the high‑water mark for defamation litigation in Australia in terms of its duration and the reported extraordinary size of the legal costs incurred by both sides in contesting it.[4]
As the articles were published in 2013, new defences introduced in 2021 under the Uniform Defamation Acts amendments, such as the public interest defence, were not available. It remains to be seen whether the expansion of defences potentially available to news media defendants will impact the huge time‑spend and associated cost incurrence in defending such significant cases.
The first opportunity to test the new ‘public interest’ defence (which is yet to be introduced into the Western Australian Defamation Act) in Lachlan Murdoch’s dispute with media outlet Crikey fell away, the case settling before trial.
[1] Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 [94].
[2] See O’Brien v Australian Broadcasting Corporation (2017) 97 NSWLR 1.
[3] Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 [2607].
[4] The proceedings reportedly resulted in both sides incurring more than $25 million in legal fees between them.