Former commando Heston Russell’s defamation win against the ABC this week in the Federal Court marks the first time Australia’s relatively new public interest defence had been tested in the courts, and the ABC’s loss marks a fascinating failure for what was lauded as a win for public interest journalism and freedom of speech.
Australia has long been known as the world’s defamation capital — if you want to pursue someone in the courts for your hurt feelings, you do it here. Of the various defences to defamation that work as legal bastions of free speech and shields for those who seek to hold our institutions to account, there was, until recently, a particularly notable omission in Australian defamation law: a public interest defence. This resulted in a regime under which plaintiffs could stymie otherwise sound investigative journalism pursued in good faith — as seen in the Ben Roberts-Smith saga.
All that changed in July 2021, after reforms to the uniform defamation laws introduced a public interest defence. But the ABC’s loss to Russell raises questions as to the efficacy of the defence, and whether journalists are actually free from being pursued in the courts by powerful figures.
Russell’s case is notable for a number of reasons, not least Justice Michael Lee’s remarks that spoke to the conduct of the ABC and the diligence with which journalists Josh Robertson and Mark Willacy undertook the task of their reporting.
Lee remarked on a “highly defensive mentality” arising at the national broadcaster and criticised its October 2020 press release responding to Daily Telegraph journalist Jonathon Moran’s report on the case.
“For reasons that are unclear on the evidence, the national broadcaster thought it necessary to criticise the Telegraph article in forceful terms and dismiss, in a supercilious tone, the author as an ‘entertainment writer’,” Lee said.
Justice Lee went on to remark that he did “not think Robertson’s dealings with Mr Russell were satisfactory”, and that Willacy’s belief in the public interest of publication was “not reasonable in the circumstances”.
University of Sydney Law Professor David Rolph, one of the country’s eminent minds on defamation and media law, told Crikey that the primary takeaway from Russell’s win is that the additional factor of the subjective belief of the publisher added into the public interest defence (as distinct from the established qualified privilege defence) would not define the outcome of a case.
“It was clear from the [ABC’s use of] the defence itself that the subjective belief of the publisher is not going to be determinative,” Rolph told Crikey.
“You’re obviously going to need to have evidence of what that subjective belief is — the ultimate question will be whether that belief was reasonable, and the sorts of factors that will be taken into account are similar sorts of factors that used to be taken into account when dealing with a statutory qualified privilege defence.
“The test will really be the reasonableness of that belief (that the publication of the matter was in the public interest), about publishing the matter at that time in that way.”
The similarities to the statutory defence of qualified privilege are striking, and prior to the July 2021 reforms, a number of the factors involved in the public interest defence were instead sectioned under qualified privilege.
Some experts argue that the public interest defence gives journalists no real additional protection, and in fact, compared to the existing defences available, may be more difficult to prove in the courts. They point to the fact that there’s effectively been a public interest defence in New South Wales since 1974 in the form of, initially, Section 22 of that act, and later Section 30 of the current Defamation Act 2005.
As it stands now, Section 30 — which allows the qualified privilege defence — gives a journalist a defence if they can prove that there is an interest in the recipient (being an audience) having information on a subject, the matter is published in the course of giving to the recipient information on that subject, and the conduct of the journalist is reasonable in the circumstances.
But the additional requirements of the new Section 29A defence — which allows the public interest defence — are seen in Russell’s case. Lee concluded his remarks by noting that he had “no doubt Mr Willacy believed the publication of the matter was in the public interest”, but that “taking his conduct as a whole, his belief was not reasonable in the circumstances”.
Lee found the second of the ABC’s articles on the matter “overstated the cogency of the evidence in the ABC’s possession and was published following several missteps, including the failure to procure fairly and consider a response from Mr Russell”.
While the ABC might have failed in the first test of public interest, it will not be long before we learn more about the potential for the defence to shield journalists from prosecution, with Nine seeking to use the defence in its case against high-profile prosthetic surgeon Dr Munjed Al Muderis.
Rolph maintains that, going forward, despite the similarities of the public interest model, its position as an alternate option for media companies remains important for the protection of free speech.
“In most investigative journalism, I would imagine that the public interest defence is going to be more important just as a protection, because it’s not going to be every case where media outlets are going to be able to prove with sufficient evidence to the requisite legal standard, or have the resources to prove to the requisite legal standard, that everything that they’ve published is true.
“An effective public interest defence, I think, is important for investigative journalism on that basis — investigative journalism is already resource-intensive.
“The changing media landscape obviously means that the funding of serious public interest journalism is already problematic.”
The ABC declined to comment when contacted for this story.