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In this third instalment of our Defamation Reforms in Review series, we consider two recent high-profile defamation cases and delve into two of the most interesting, topical and complex defences that the publisher of an allegedly defamatory statement (the Publisher) may raise in defence of a defamation action: contextual truth and public interest.

Both defences enable the Publisher to escape liability for defamatory statements; the former where other, more serious allegations are proven such that no harm to reputation is caused, and the latter where it is in the public interest to publish otherwise defamatory statements. The cases should, therefore, be of significant interest to ‘public interest’ publishers as they provide guidance on steps that should be taken when discussing sensitive material concerning an individual.

The contextual truth defence

The defence of contextual truth allows the Publisher to escape liability for defamatory statements when it can establish that the person about whom the statements are made (the Subject) has had their reputation damaged by other defamatory statements that are substantially true, such that the Publisher’s other statement did not inflict any additional harm to the Subject’s reputation. This defence applies even if the Publisher’s other statements are false.

In the matter of Ben Roberts-Smith v Fairfax Media, Ben Roberts-Smith alleged that Fairfax had published several defamatory statements about him in various Media publications, giving rise to imputations that he:

• killed an unarmed Afghan civilian by kicking him off a cliff and ordering junior soldiers under his command to shoot him;
• killed a man with a prosthetic leg by machine-gunning him;
• pressured a new SAS soldier to execute an elderly, unarmed Afghan civilian to “blood the rookie”; and
• perpetrated an act of domestic violence against a former romantic partner.

The Court found that Fairfax Media successfully proved that the first three statements were substantially true, but it failed to prove that with respect to the fourth statement. The trial Judge, Justice Besanko, found that the damage caused to Mr Roberts-Smith by the first three statements was so great that it did not matter that Fairfax couldn’t prove that the fourth statement was substantially true. The Judge reasoned that the fourth statement did not cause any further harm to Ben Roberts-Smith’s reputation, given the truth of the first three statements.

The public interest defence

In July 2021, all states and territories except WA and the NT introduced a new ‘public interest’ defence. To successfully raise the defence, the Publisher must establish that:

• the alleged defamatory statement concerns an issue of public interest;
• the Publisher believed that the publication of the statement was in the public interest; and
• the Publisher’s belief was reasonable.

In considering this defence, the relevant Statutes in each Australian state and territory provide a non-exhaustive list of factors that the Court may consider when determining if the Publisher may rely on the public interest defence, including:

1. the seriousness of any defamatory imputation carried by the matter published;
2. the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
3. the sources of the information in the matter published, including the integrity of the sources; and
4. whether (given the circumstances) it was in the public interest for the matter to be published expeditiously.

In Russell v Australian Broadcasting Corporation, handed down in October 2023, the Federal Court considered for the first time the new ‘public interest’ defence, finding that the ABC and two of its journalists had defamed former soldier Heston Russell as the ABC had failed to establish that the relevant publications were in the public interest. The case concerned Heston Russell, a former special forces soldier, who commenced proceedings against the ABC in respect of two articles and related broadcasts that linked Mr Russell to an apparent criminal investigation into the killing of an unarmed Afghan prisoner in 2012.

In the decision involving Mr Russell, the trial Judge, Justice Michael Lee, accepted that publication of the relevant media reports was in the public interest. The key issue for the Court was whether the ABC’s belief that the reporting was in the public interest was reasonable. Ultimately, Justice Lee found against the ABC, holding that it had overstated the available evidence supporting the statements and failed to distinguish between suspicions, allegations and facts. On that basis, Justice Lee found that the ABC’s belief that publishing the media article was in the public interest was unreasonable.

The decision provides helpful guidance on the scope and nature of this defence in the Australian context, including:

• The term “public interest” is used in two different senses in the defamation legislation – that is, whether the:
  • subject matter itself is in the public interest; and
  • publication of that matter is in the public interest.

• It extends beyond the material that the public needs to know and includes:
  • a matter relating to the public life of the community and those who take part in it;
  • the governance of public bodies, institutions and companies which give rise to a public interest in disclosure; and
  • a matter published in the course of, or for the purposes of, a discussion of the conduct of some person or institution that invites public criticism or discussion.

• Matters that are personal and private are not in the public interest.
• The number of people directly involved in or affected by the matter and its newsworthiness are irrelevant considerations for the purpose of this defence.

What lies ahead?

The Court’s consideration of the contextual truth defence has shown that it will afford Publishers a fallback defence of contextual truth even if the Court finds insufficient evidence to prove the substantial truth of the statement, provided more serious allegations are proven such that the Subject’s reputation has suffered no additional harm. The defence is an interesting and useful mechanism by which a Publisher may escape liability for publishing statements containing defamatory imputations where the statement lacks overwhelming evidence.

Conversely, the Court’s first consideration of the public interest defence serves as a warning to Publishers to clearly delineate between facts that can be substantiated by reliable evidence and mere suspicions, opinions or allegations. If there are any weaknesses in the evidence supporting any statements which give rise to the defamatory imputations concerning the Subject, the Publisher should clearly delineate between mere suspicions, allegations and reliable facts. The Court has signalled that poorly evidenced reporting that defames the Subject will be remedied through either compensatory damages or injunctive relief, even where the subject matter of a report is within the public interest.

These two cases are essential reading for any publisher of material thought to be in the public interest. We anticipate that in 2024, more defendant Publishers will seek to rely on the defences of contextual truth and the public interest, giving the Court an opportunity to consider these defences more thoroughly in defamation claims.