Ben Roberts-Smith is unquestionably the agent of his own demise. That much is obvious after his sensational defamation loss.
But behind the headlines there is another story. It’s about the power balance between public interest journalism and well-funded, big-name plaintiffs. It’s buried in the technical detail. Unpacked, it shines a light on the way our defamation laws suffocate press freedom, and how an underused defence called contextual truth may help restore equilibrium.
Roberts-Smith followed a pretty standard play in Australia. Press writes investigative piece about someone powerful. Powerful someone sues for defamation, silencing criticism and striking fear into editors nationwide. Think Christian Porter, Geoffrey Rush, Alan Jones, Chau Chak Wing, Craig McLachlan, Lachlan Murdoch and Roberts-Smith. It’s no wonder we’ve been called the defamation capital of the world.
That’s the big picture. Now zoom in on the complexities, the gnarly little ways that plaintiffs can manipulate dark corners of the law to improve their position. One is “imputations”, defamatory meanings arising from a publication.
In a defamation case, the plaintiff gets to define the imputations arising from the article. And that gives them one of their biggest strategic advantages. A truth defence must prove the truth of those imputations, rather than the actual words published. By choosing imputations, the plaintiff defines what truth the news publisher must prove. It’s Orwellian.
Roberts-Smith made a strategic call to plead imputations that he murdered an unarmed and defenceless Afghan civilian and was a war criminal. That meant Nine newspapers and The Canberra Times had to prove he was guilty of murder. Anything less meant failure.
In Murdoch’s case against Private Media, he chose an outlandishly literal interpretation of the line: “Trump is an unhinged traitor and the Murdochs are his unindicted co-conspirators”. He pleaded imputations including that he illegally conspired with former US president Donald Trump to incite an armed mob to march on the Capitol to physically prevent confirmation of the 2020 US election. Private Media did not plead a truth defence.
Defences such as qualified privilege and more recently public interest are supposed to protect the press even when a truth defence cannot, although historically qualified privilege has been applied narrowly, offering little comfort. And the public interest defence is untested in Australia. That leaves news publishers exposed. And it threatens the principles that underpin press freedom.
The purpose of public interest journalism is to stimulate public debate. Debate should be vehement, caustic and sometimes unpleasantly sharp. Erroneous statement is inevitable, and must be protected for freedom of expression to have the breathing space it needs to survive. That’s what the US Supreme Court said in the 1960s when it ruled that public figures have no action for defamation unless the publisher acted with malice.
The press serves the same purpose in Australia. But unlike the US we have no bill of rights, so our press lacks the same legal protection. Instead news publishers are left to pick through the remains of narrow and uncertain defences when they can’t prove the plaintiff’s version of the truth.
In the Roberts-Smith and Murdoch cases, the publishers ran a lesser-known defence called contextual truth. It allowed them to plead, and prove, a different imputation from that alleged by the plaintiffs. It has to be more serious than the plaintiff’s imputation, and it has to relate to the same sector of the plaintiff’s reputation.
In Roberts-Smith’s case, the contextual truth defence saved Nine on the imputations it couldn’t prove, such as that he assaulted his girlfriend. Nine had already proved that Roberts-Smith broke the moral and legal rules of military engagement and was a criminal, and that he had disgraced his country by his conduct in Afghanistan. Those imputations were more damaging and they all had the same flavour — involving violent conduct towards a vulnerable person and an attempted cover-up. The contextual truth defence succeeded.
The judge went even further, finding that because Nine proved that Roberts-Smith was a war criminal and had disgraced his country, Roberts-Smith literally had no reputation left to harm. Because of the contextual truth defence, he is now undefamable.
In the Murdoch case, contextual truth shifted the emphasis away from Murdoch’s pleading of a literal, criminal conspiracy with Trump. It refocused the case on the story’s intended meaning: that Murdoch was morally and ethically culpable for the January 6 insurrection because he allowed Fox News to promote Trump’s “Big Lie”. In that way, the defence counteracted the strategic impact of Murdoch’s pleaded imputations.
Maybe this all sounds semantic. Lawyers having fun with words for profit. However, what seems like legal minutiae actually feeds a much bigger picture.
Put simply, powerful defamation plaintiffs have too much control over public interest journalism in Australia. Our laws hand it to them. That’s why it’s important to see the contextual truth for what it is — a small but significant instrument for resetting the balance.
Disclosure: Hannah Marshall is a partner at Marque Lawyers and formed part of Private Media’s defence team for the Murdoch case.
Thanks for the clearest explanation I’ve yet seen of the contextual truth defence.
Yes, that has been said, but London has a pretty convincing claim to that title (missing word starts with defa, then mat and ends with ion]. Russian oligarchs, Tory party ‘donors’ and various others of dubious and malevolent character do very well working with rapacious and unprincipled English lawyers to use English libel law to intimidate, harass and silence anyone who annoys them.
Things are changing pretty quickly in the UK. After the summer shower that was Johnson’s resignation “honours” list, it could now be fairly argued that – if someone calls you “Lord” or “Lady” when you are not so ennobled – they have irretrievably damaged your reputation.
In terms of a craven sellout to the highest bidder, Australia is nipping at the heels of the City of London.
Executive Chairman of News Corp Australasia Michael Miller in June ’19 claimed in a Fairfax article that “The fight over press freedom is not a fight to protect media organisations. It is a fight to protect the public’s right to be fully informed … we are acting so forcefully now is that the issues raised by the AFP raids at a Federal level are the tip of a very large iceberg.” In the process he made an impressive number of admissions, most contrary to the usual position in “The Australian”:
[1] Australian government has a creeping culture of secrecy.
“… Journalists from virtually every major media organisation in the country are facing contempt charges for an Australian story the rest of the world knew about.
“[2] lack of free speech, lack of rights.
“We are the only democracy we compare ourselves to that does not protect free speech and the freedom of the press through a charter or bill of rights.
“[3] commercial viability and press freedom are inextricably linked.
“To continue to serve the public, real journalism companies need to have both a level commercial playing field and the freedom to pursue genuine journalism.
“[4]extreme and oppressive laws.
“… We object to the huge number of federal laws passed in the last decade that include measures that criminalise journalism.”
Truly the hypocrisy of the Right has no upper limit.
Why didn’t Peter Dutton make that list?
Beautifully written piece Hannah and a great contribution to the discussion. Thank you
I don’t think the effect of the contextual truth defence allowing a publisher to defend any rubbish merely by including another allegation already in the public arena which can be proved to be true, should be considered a step forward. Its an invitation to use what is basically a morally dishonest strategy. Its different if the separate allegations are in the same publication as part of the narrative, which was the case here. Incidentally the defence of contextual truth has ben available in NSW since 1974 and throughput Australia since 2005 (though restricted between 2010-2021 so that a defendant could not “plead back” one of the plaintiff’s own imputations as a contextual imputation. Also I beg to differ as to the description of the statutory qualified privilege defence as unfair and inadequate. The publisher has to establish that its publication was reasonable in the circumstances. What on earth is unfair about that? Why should peoples lives be destroyed by sloppy journalism? There is a real problem n the debate over the proper confines of freedom of speech where a sense of entitlement is combined with commercial interest by a wealthy media industry that has such a great advantage in pressing its agenda. Also, the article fails to mention the new section 29A providing an additional defence regarding matters of public interest where all that is required of the publisher is that it reasonably believes the publication is in the public interest. Finally, do we really want a media environment like the US: it is a disaster. We should keep tying to be better than that.
You are misrepresenting the article. It does not anywhere say the qualified privilege defence is unfair or inadequate. It only says it has been interpreted too narrowly, a point your misdirected criticism does not address.
Yes, the US right of free speech has been developed by its courts to an extreme and grotesque extent; it should be noted many of the strongest critics of this in the USA are the wealthy and powerful who are very unhappy they cannot silence those who annoy them in that jurisdiction as they would anywhere else. But the article does not put forward the US version as something to copy blindly. It only notes that Australia, unlike the US, has no Bill of Rights to defend free speech. This is true, and there is a powerful argument to say Australians would be better off with some basic constitutional rights. It should not be beyond us to frame a Bill of Rights for Australia without repeating the less desirable elements in other such bills.
You misdescribe the article. It says ” historically qualified privilege has been applied narrowly, offering little comfort…That leaves news publishers exposed. And it threatens the principles that underpin press freedom.” I think my charaterisation is fair. As for addressing the bare statement that “it has ben interpreted too narrowly”, how on earth am I supposed to meet such an unsupported proposition?
You chose to meet the proposition by replacing it with something the author did not say and almost certainly did not intend; she is a lawyer and it is reasonable to assume she knows how to find the words that convey her meaning on this topic. Your starting point in addressing the author’s proposition should be that proposition, not another one you’ve invented. If you cannot do that, then perhaps Wittgenstein will help you: “Whereof one cannot speak, thereof one must be silent.”
https://www.vox.com/2014/11/17/7229547/philosophy-quotes-misunderstood-wittgenstein-sartre-descartes