The trial was long, occupying more than a hundred days of hearings, and was protracted due to Covid-related interruptions. The proceedings were aggressively contested. More than forty witnesses gave evidence in the case. There were multiple interlocutory judgments. The final judgment, when it was handed down in early June, was the forty-first one in the proceedings.

The evidence was factually complex. Ultimately, though, the legal issues were straightforward. This was due to the defences pleaded by the newspapers.

The principal defence relied upon by the publishers was truth. Truth is a complete defence to defamation. The principled basis for this is that a person is only entitled to protect the reputation they deserve. If a person has enjoyed a high reputation undeservedly and a publisher tells the truth about that person, defamation law does not regard the person’s reputation as damaged. Rather, the person’s reputation is recalibrated down to the level at which it always should have been. This is, of course, precisely what happened to Roberts-Smith.

There were two variants of the truth defence relied on by the publishers in the case. The first was the straightforward defence of truth. Roberts-Smith had pleaded fourteen imputations arising from the articles. The newspapers were required to establish the substantial truth of each one of them in order to have a complete defence of truth. The standard is substantial accuracy, not strict or absolute accuracy. So minor errors of detail will not defeat the defence if the allegation is proved to be true in substance. Also, given that this was a civil proceeding – a claim for damages for defamation – not a criminal trial, the standard of proof was on the balance of probabilities, not beyond reasonable doubt. However, the seriousness of the allegations necessarily had to inform the cogency of the evidence Justice Besanko required to be actually persuaded that the allegations against Roberts-Smith were more probably true than not true. (This principle is known at common law as the Briginshaw standard, after an influential 1938 High Court of Australia decision.)

The newspapers were able to justify all but three of Roberts-Smith’s pleaded imputations. To defend the remaining three imputations, they had to rely upon a statutory defence of contextual truth. Contextual truth is a fallback defence. It allows a defendant to have a complete defence if the substantially true allegations about the plaintiff outweigh the harm done to the plaintiff’s reputation by the false allegations. Here, given the number and gravity of the allegations the newspapers had proved to be true, Justice Besanko readily found that the two undefended imputations of domestic violence and one undefended imputation of threatening a soldier would not further damage Roberts-Smith’s reputation. By this stage, Roberts-Smith’s reputation had been so diminished by the truth of what had been published about him that no further harm was done to his reputation.

The truth defence in this case worked. Had it not succeeded, the likely damages for Roberts-Smith, in addition to the legal costs, would have been crippling for the newspapers. Investigative journalism is expensive and resource-intensive to undertake, but serves the vital public interest of holding power to account and informing the public about what is occurring. Its costs are compounded by the risk of defamation. This risk has to be managed pre-publication and, if that fails, has to be dealt with through defamation litigation, which is extremely costly. The estimated cost of the Roberts-Smith trial is $25 million. Media outlets have long agitated for greater protections to facilitate public interest journalism. In doing so, they are seeking at once to advance the public interest, but also, it should be frankly acknowledged, their own commercial interests.

These proceedings were conducted under the national, uniform defamation laws prior to the commencement of potentially significant reforms to them. From mid-2021, across Australia, except in the Northern Territory and Western Australia, the first stage of those reforms has come into effect. They include a reform that media outlets have been seeking for many years: a public interest defence to defamation. This defence closes a gap in the common law and brings Australian defamation law closer to the position in the United Kingdom, Canada, and New Zealand.

The contours of the principal defences to defamation – truth, privilege, and comment – were settled in the nineteenth century. As they developed, courts decided against recognising a broad-based defence for publication to the world at large on matters of public interest. Legislatures introduced various forms of statutory protections directed at providing a measure of protection for such publications.

The focus of defences like statutory qualified privilege and the new public interest defence is on the journalists. To establish a defence of statutory qualified privilege, the defendant has to establish the reasonableness of their conduct in the circumstances of publication. The public interest defence requires the defendant to have a reasonable belief that the publication of the matter was in the public interest.

The effect of the newspapers relying solely on defences of truth in the Roberts-Smith case was that the quality of their journalism was not the focus of the trial. Had they pleaded a defence of statutory qualified privilege, the reasonableness of their journalists’ conduct would have been closely scrutinised over the course of the trial. Instead, by relying on truth, the intense focus of the trial was on Roberts-Smith’s conduct. Were the allegations the newspapers published about him true? It was a risky strategy for the newspapers, but it worked in this case. However, media outlets should not always have to run such a high risk in order to undertake serious investigative journalism on matters of public interest.

It is important to be clear about what the case decided. Clearly, it was not a criminal prosecution. There were no charges and no conviction. The case did not concern Roberts-Smith’s liberty but what can be lawfully said about him. By deciding to sue for defamation, Roberts-Smith himself put his reputation in issue. He asked a court to determine whether it was defamatory to say of him that he was a murderer, a war criminal, and a bully. A court found that those allegations were true. Those findings were not provisional: they were final determinations following a full hearing of the evidence. There may or may not be an appeal, and any such appeal may or may not be successful. All that is in the future and is contingent. The possibility of a successful appeal does not detract from the fact that Justice Besanko’s judgment finally determines the issues in the case and what can now be lawfully said about Roberts-Smith.

Sometimes, allegations are so serious and so public that a person may think that they have no choice but to sue for defamation. But ultimately, suing for defamation is a choice – and a risky one, as Roberts-Smith learned publicly and to his great cost. The reputational harm ultimately done to Roberts-Smith was self-inflicted. 

This article is one of a series of ABR commentaries on cultural and political subjects being funded by the Copyright Agency’s Cultural Fund.