Investigative reporting and defamation
The Ben Roberts-Smith case may be the greatest show in town, yet the consequences for the media defendants cannot be overstated. The future of investigative reporting is held in the balance.
It may not yet have sunk in how significant the case is to future journalistic careers, to the serious task of public interest reporting and to free speech itself. Observers of litigation and media dynamics say the outcome of the trial will determine the ongoing direction of Nine newspapers.
A defeat would be so diabolically costly that there will be no room for expenditure on investigative journalism and no will to pursue it. Even as the old Fairfax and now Nine newspapers business has significantly restructured to stay afloat, enormous resources and eye-watering amounts of money have been put into defending these reports. If they lose, a defence of this scale will not be repeated. Reporting henceforth will have to be risk averse.
The case is entirely different in scale and importance from other big, rambling actions, such as the John Marsden case against Channel Seven, or Geoffrey Rush against The Daily Telegraph, or the Chelmsford doctors against HarperCollins and journalist Steve Cannane, or Chau Chak Wing against the ABC and Fairfax.
Over the past two years there have been at least 16 preliminary judgements and more than 20 case management hearings in Roberts-Smith v Fairfax, prior to the commencement of what will be a three-month trial.
The case relates to a series of pieces in print and online, published in June and August 2018, in The Sydney Morning Herald, The Age and The Canberra Times. The articles were written by Nick McKenzie, Chris Masters and David Wroe, and detailed the alleged activities of the SAS and Roberts-Smith during assignments in the Afghan war.
The former soldier says these reports make him out to be a person who broke the moral and legal rules of engagement in war and, in doing so, disgraced his country and the army. He denies them categorically.
The media respondents say their reports are true – that Roberts-Smith was complicit in the murder of six detainees, that he bullied and intimidated other soldiers and that in his post-Afghanistan life he assaulted a woman with whom he was having an affair.
At the same time as Fairfax was publishing its reports, Justice Paul Brereton, as Inspector-General of the Australian Defence Force, was inquiring into what went on in Afghanistan, ultimately finding serious misconduct by Australian special forces including allegations of 39 murders of non-combatant Afghans in 23 incidents.
Chief of the Defence Force General Angus Campbell described the alleged conduct as “disgraceful and a profound betrayal”.
The Brereton findings are now with a special investigator, former judge Mark Weinberg, QC. No individuals have been named.
Ten years earlier, at the end of 2010, it was reported in the Fairfax press that a “top-brass proposal” for the awarding of a Victoria Cross to an unnamed Australian soldier was “mired in politics and recriminations”.
The award was regarded as a way of boosting the morale of troops in what was then the ninth year of the Afghanistan war. A month later it was announced that Roberts-Smith was to be the recipient.
A decade on, the recriminations have not gone away and we have a court case with great significance for the media and for the armed forces.
Sources and witnesses have given the publisher sworn statements. Their information has been checked and rechecked against other sources, and each story was pored over by prepublication lawyers.
Fairfax/Nine is confident it has a strong truth defence. Yet this is libel land, where outcomes are unpredictable, where the credibility of strong witnesses is brutally attacked, where you might think all the ducks are lined up only to find they’re not, and where some of the pleaded imputations escape the limitations of the defence.
For Roberts-Smith, the loss would be a personal disgrace and blot on the escutcheon of the army. His Victoria Cross medal has been described as collateral for the loan that media magnate Kerry Stokes stumped up for his employee’s lawyers.
If the media case is found to be “substantially true”, then Stokes would be free to take possession of what by then would be a tarnished trinket. The mogul has a bit of a thing about the military and its decorations. He has purchased at enormous prices seven Victoria Crosses and other awards and donated them to the Australian War Memorial, where he has been chairman for nearly six years.
What has been troubling at a time in which the media, both public and commercial, is hanging on by its fingernails, is that Stokes, as the proprietor of one large free-to-air TV and newspaper network, sees it as acceptable to rigorously contest the journalism of a competitor.
That said, the trial, until Covid-19 took a bite out of proceedings, has followed a well-worn script.
Roberts-Smith’s counsel opens and takes his client carefully through his acts of heroism, with the best gloss on events military and domestic. Some of the shine then comes off during eight days of cross-examination, where most of the counterpropositions are rejected – No, never, it didn’t happen, the suggestion is disgusting et cetera.
Reputation witnesses do their best to revarnish the claimant. Former Australian War Memorial boss Brendan Nelson steps in with effusions about Roberts-Smith being met by “reverential mobs” – well-wishers falling into his arms, senior people saluting him.
There will be a large number of truth witnesses presented from both sides, examined and cross-examined, further submissions, and then, ultimately, after 12 or more weeks, it will be left to Justice Anthony Besanko to decide whether the media stories are “substantially true”.
So far, there has been a sharp difference in the accounts of what happened in Afghanistan and whether Roberts-Smith is a war hero or a war criminal.
Mostly gone are the days when these cases were decided by juries charged with applying “community standards”. Last year, there was just one defamation trial with a jury, and that was in the New South Wales District Court. Covid-19 may be partly responsible for taking the assessments out of the hands of the community, but since about 2016 jury trials have been getting rarer.
The Federal Court, where trials are conducted before a single judge, has gobbled up most of the defamation work. This is particularly so since the Joe Hockey “Treasurer for sale” defamation case in 2015. We now see applicants preferring to have their reputations assessed by judges, rather than their peers.
Over the past 12 years, between 2008 and 2020, the media were defendants in more than 300 defamation cases in Australia, successfully defending less than a third of them. Plaintiff success and settlements together accounted for 69 per cent of outcomes.
Over this period the average defamation damages bill was $349,560.10. Between 2018 and 2020, however, it leapt to more than $1 million, a figure swollen by payouts in the Wagner brothers’ Grantham flood report and Geoffrey Rush litigations.
There is an increasing desire to take cases to court. Barristers report matters that might once have been settled are instead going to trial. An entire industry of “reputational risk” managers has been spawned and celebrity lawyers now flaunt their wares in public.
In the immediate aftermath of the 1997 decision by the High Court in Lange v ABC, where an implied freedom of political communication was articulated, there was barely a peep from politicians wanting to sue the press.
It must have been thought that the new freedom gave publishers greater latitude to explore the conduct and suitability of politicians. That nirvana was short-lived, though, and now politicians are just as busy as any other species of litigant. Beating a path to the Federal Court have been Christian Porter, Peter Dutton, John Barilaro, Sarah Hanson-Young, Emma Husar and Andrew Laming.
From Thursday, a new national defamation law took effect in NSW, Victoria, Queensland, South Australia and the ACT. That’s 85 per cent of the Australian population under the reformed regime, designed to “strike a better balance between protecting reputations and freedom of expression”.
Already a phalanx of lawyers has signed on to a treatise claiming that the reforms will only lead to more expense and longer delays. None of the signatories come from the recognised ranks of media defenders.
One notable silk, who has made a fortune out of suing the media, claims that the media’s losing streak is not due to a “failure of laws” but a “failure of journalism”.
As the late Mandy Rice-Davies might have said, “Well, he would, wouldn’t he?”
What we are witnessing is a concerted effort to blunt the media through a process of litigation exhaustion. The inevitable consequence is a timidity in the presentation of news and views, and yet more articles on how to make the perfect mushroom omelette.
The Ben Roberts-Smith case will not be the only one that changes how stories are covered and which stories are told. But whatever its outcome, it will be a landmark in how the media functions in this country.
This article was first published in the print edition of The Saturday Paper on Jul 3, 2021 as "A long, expensive tour of libel land".
During the final week of the election campaign we are unlocking all of our journalism. A free press is one you pay for. Now is the time to subscribe.