On Monday 7 June 2021, a high-profile defamation trial commenced in the Federal Court in Sydney. War veteran Ben Roberts-Smith has brought Nine Entertainment Co to court for defamation after they published articles in 2018 that alleged Roberts-Smith was involved in unlawful killings while on deployment in Afghanistan and also that he punched a woman he was having an affair with. Roberts-Smith denies the allegations.

The trial

The trial is expected to take up to 10 weeks. Roberts-Smith has already been in the witness box giving evidence for two days, (as at the time this article was written). Roberts-Smith is claiming he has lost $475,000 in income as of the end of 2020 as a result of the articles published by Nine. He has engaged an accountant to calculate his lost income, as well as estimates of his future losses.

The Trial has heard that Roberts-Smith earned $320,000 a year before the allegations.  Some of the best defamation barristers in Australia are conducting the trial.  Roberts-Smith’s legal team is seeking record aggravated damages, saying Nine Entertainment has falsely attacked his reputation and the need to vindicate him in the eyes of the public and compensate him for the damage to his reputation.

Unusually, part of this trial will be heard behind closed doors because there will be reference to documents from the Department of Defence produced that contain information that is sensitive and relevant to national security.

What is defamation?

Defamation can occur when someone’s reputation is harmed due to the publication of information about them. ‘Publication’ of information can include any sharing of the information to a third party, it does not have to be published in an article like the articles published by Nine in this case. Publication can include acts such as speaking, posting on social media, writing, etc. Likewise, something can be defamatory even if it is not in writing. Things like photographs, drawings and speech can also be defamatory.

For something to be defamatory, it must identify the person whom it is about, but it does not have to explicitly say their name. If it is clear who the information is about, even if it does not say their name or show their face, for example, it can still be defamatory.

Lastly, for something to be defamatory, it must have caused harm to the person’s reputation.

Defences to defamation

There are several defences to defamation, including:

  • Truth

If a statement about someone is true, it cannot be defamatory, even if it is harmful to the person’s reputation.

For example, if Person A is convicted of a crime, it is likely to be harmful to Person A’s reputation if News Company B reports on the conviction. However, as long as News Company B gets all of the information correct, they can publish a news report about the conviction of Person A and it won’t be defamatory.

In the Roberts-Smith trial, Nine Entertainment is relying upon this as a defence to the claims of defamation.

  • Honest Opinion

If somebody publishes information about Person A that is clearly just their opinion and not fact, then it may fall under the defence of honest opinion if the subject matter is in the public interest and based on true facts.

  • Absolute privilege

Anything said in Parliament is exempt from a claim of defamation. This is sometimes referred to as ‘parliamentary privilege’.

Australia is now considered globally as one of the highest damages awarding places for defamation claims.  There has been discussion for a number of years about changing the defamation laws in Australia to restrict both its ambit and the value of damages awarded.  Ironically, a lot of the recent momentum in this agenda for change was advanced by the former Attorney General Christian Porter before his recent defamation case.

We have recently seen staggering damages awarded to both Geoffrey Rush and Rebel Wilson for successful defamation claims.  Defamation law in Australia is unusual in that it is state-based legislation but is mirrored in each state in Australia.  The Model Defamation Provisions Intergovernmental Committee have finalised a series of amendments.  New South Wales is the first state to start to enact the damages.

There are a number of amendments in the NSW bill, but three are of particular interest:

  1. The requirements that a plaintiff must give a concern notice to a defendant prior to commencing court action.
  2. That a plaintiff must establish that they have suffered, or would suffer, serious harm due to the publication.
  3. A new defence has been created for publication made in the public interest.

The bill is awaiting assent.  However, once in operation, the amendments will impact how plaintiffs and defendants approach defamation claims.

If you are interested in learning some more about defamation and other high-profile Australian defamation cases, you can read our previous articles on the subject: What is Defamation? and Defamation.

Have you been defamed?

If you think you have been defamed, or if someone has accused you of defaming them, don’t hesitate to contact Lynn & Brown Lawyers for expert legal advice.

This article has been co-authored by Chelsea McNeill and Steven Brown. Chelsea is a Law Graduate from Murdoch University. Steven is a Perth lawyer and director, and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution and estate planning.

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