Journalism is the big winner in Australian defamation case, for now

By Peter Bale


New Zealand and the U.K.


The Sydney Morning Herald and its sister title The Age, under the Nine Entertainment umbrella, won an epic defamation case taken by a celebrated Australian war hero, but it was a case which highlights the risks of legal dangers to journalism and the cost of defending tough reporting.

In a stunning judgment which also cleared The Canberra Times, a federal court judge found the news organisations had proven that a decorated soldier who had become a national celebrity had committed war crimes during service in Afghanistan.

The case, brought by Ben Roberts-Smith, with the backing of some of the country’s wealthiest people (including investors in rival media organisations), was the latest big test of some of the most plaintiff-friendly libel and defamation laws in the world. It also is a test of how costly it can be for media organisations to defend the work of their newsrooms — no matter how accurate or truthful.

I am not going to go into the details of the case, which you can read here on The Guardian Australia site outside a paywall, but suffice it to say the judgment is a vindication of the work of the SMH, Age, and Canberra Times journalists and of the determination of their employers to defend their work against the enormous cost of standing up to litigation. The SMH coverage, much of which is available outside a paywall, is here.

It is also a warning of the cost of defending libel and defamation and the need for all newsrooms to train reporters in legal dangers — especially in jurisdictions favourable to plaintiffs such as the United Kingdom and most Commonwealth countries, as well as countries were governments are less than supportive of press freedom and use the judiciary as a lever of power.

The Roberts-Smith case took five years to get to the verdict — which may yet be subject to appeal — and Nine Entertainment is reported to have spent tens of millions of dollars to defend the allegations made by the investigative team that uncovered war crimes and a cult of secrecy and impunity among Australian special forces in Afghanistan. The cost of the case across defence and the government, plus Nine has been estimated at A$35 million (USD$23 million).

“Sadly, irrespective of the outcome, this won’t be encouraging to brave, responsible, risk-taking journalism,” one of the journalists involved, Chris Masters, was reported as telling The Guardian’s Hugh Riminton. “If this is what it takes, it’s too much.”

Even if Nine manages to gain a settlement of most of its costs, it is unlikely to get it all back, let alone the time and management investment required to fight such a case.The company has hailed the victory as justifying its reporting and its investment to defend the case. It is unclear yet whether the soldier who took the case will try to appeal the ruling.

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About Peter Bale

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