Public interest legal defenses in defamation cases in New South Wales – Libel and defamation

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Australia’s national broadcaster ordered to pay $390,000 plus interest and legal costs after losing suit for defamation brought by a former Australian special forces commando.

The case is important because it recently clarified,introduced a legal defense of “public interest” defamation requires publishers such as reporters, journalists and media organizations not only to believe that their publications are in the public interest, but to demonstrate that their belief was reasonable in the circumstances;

Management

ABC journalists reported in stories published in 2020 and 2021 that ex-special forces soldier Heston Russell was involved in the 2012 killing of an unarmed Afghan prisoner.

The original allegation came from a US Marine named “Josh” who contacted ABC journalist Mark Willacy about claims he had heard but not witnessed what he believed to be a radio shot.

The ABC relied heavily on this source of information in its articles.

Heston Russell subsequently launched a defamation suit against the ABC and two journalists – Mark Willacy and Josh Robertson – over the stories, claiming that the articles defamed him by suggesting that he “used to kill people needlessly” when he was in Afghanistan and that he left “fire and bodies” behind him.

Mr Russell sued the ABC for damages and aggravated damages because his reputation had been “severely damaged” as a result of the publication.

Part of the defamation proceedings related to an ABC article published in December 2022 which claimed Mr Russell had lied about selling nude photos on OnlyFans to raise funds for veterans’ charity Swiss 8.

ABC relating to the protection of the public interest

This was a complex and long-running case, during which the ABC journalists initially relied on the defense of truth and was later overturned by the court on the defense of “public interest” – which was introduced into the Defamation Act 2005 (NSW) on 1 July 2021 by inserting section 29A.

The defense set out in Section 29A of the Defamation Act 2005 is often relied upon by media organizations to support the fact that they have an important role in a healthy democracy in reporting information that the public has an “interest” to know or a “right to know.”

In order to rely on the defence, ABC had to prove on the balance of probabilities (in other words that it was more likely than not) that:

  • the matter relates to a matter of public interest and

  • the defendant reasonably believed that the publication of the matter was in the public interest.

In determining whether a defense has been successfully established, a court may consider a number of factors, including:

  • the seriousness of any defamatory insinuations in the publication;

  • to what extent the publication distinguishes between suspicions, claims and proven facts,

  • to what extent does the disclosure relate to the performance of a public function or the activity of the injured party,

  • whether it was in the public interest for the matter to be published expeditiously,

  • the source(s) and integrity of the information relied upon;

  • in the case of a confidential source, whether there is good reason to withhold the person’s identity,

  • whether the publication contained the substance of the injured person’s story and, if not, whether the defendant made a reasonable attempt to obtain and publish a response;

  • any further steps taken to verify the information in the disclosed matter and

  • the importance of freedom of expression in the discussion of issues of public interest.

The faith was real, but not reasonable

In the case before the court, Judge Michael Lee pointed out that a journalist’s belief that the reporting was in the public interest must not only be genuine but also “reasonable in the circumstances”.

His Honor said there was no doubt Mr Willacy “believed it was in the public interest to make the matter public” but “his belief was not reasonable in the circumstances”.

He therefore ordered the ABC to pay Mr Russell $390,000 plus 3% interest and costs, but did not award the former soldier enhanced damages because the reporting was not “incorrect, unauthorized or lacking bona fides”.

“Neither side will emerge from this case without criticism, but my conclusion is that the respondents have failed to establish a public interest defense and, as a result, Mr. Russell is entitled to judgment and an award of proper damages.” Judge Lee noted.

His Honor went on to give a number of reasons for his findings, including the way the article was drafted and the urgency of the ABC’s publication.

He was highly critical of journalists, particularly their insistence on jumping to conclusions without real evidence and their heavy reliance on a single source of information, a US Marine named “Josh”.

Judge Lee found Josh’s memory “required bail and pointed to the importance of verification and careful examination”.

He added that “all Mr Willacy really did” to verify the allegations was to “satisfy” himself that Josh was who he claimed to be; making “reckless requests from Josh to ask his crewmates to talk to him, which Josh refused”; and asked a “senior military source” who was not in Afghanistan at the time, who gave Mr Willacy only a “vague indication” that the allegation was “credible” and “worth reporting”.

“He has not ascertained from those with experience in Afghanistan, or from anyone with any expertise or experience in ground military service, whether Josh’s allegations are credible.

“Many ex-soldiers have provided incontrovertible evidence that the components of the allegations were not,” Judge Lee said. “A reasonable journalist would do more to investigate the sources of potential corroboration.”

In perhaps one of Justice Lee’s most critical observations about the ABC and its journalists, he found that the writing of a single article did not distinguish between information / actions / events that were “suspected” and those that were actually proven.

Responsibility of journalists and publishers

The public interest defense is designed to protect those who publish material critical of politicians and other public officials, journalists, bloggers, television producers, etc. and anyone who puts content into the public domain, including individuals who have their own social networks sites.

However, a recent case makes it clear that reporters also have a responsibility to ensure that the material they publish is accurate and fact-checked and does not include “assumptions” or “assumptions” that are not based on truth or are based on an accurate and provable set of events or circumstances.

“Confidential sources” of information should always be thoroughly vetted. The media also have a duty to inform impartially, not persuasively.

Defamation cases are on the rise Defamation cases are on the rise in Australia – and yes, there is a link with the rise of social media, which has led to the proliferation of platforms and is putting increasing pressure on the media to fill 24 hours a day. news cycle—but the ability to sue for defamation is an important safety net anyone who believes their reputation was damaged by inaccurate information about them published.

In New South Wales, as in other states“a lawsuit for defamation is not admissible if it is filed after the expiration of the limitation period of 1 year from the date of publication of the claimed matter”, unless there are serious reasons for extending this period.

The content of this article is intended to provide a general guide to the issue. Professional advice should be sought regarding your particular situation.

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