While there is no consensus on how the balance between reputation rights and freedom of expression should be struck, some proposals are not controversial. Incalculable damage to reputation can be caused by the publication or dissemination of defamatory material.
The damage is generally proportional to the severity of the accusations and the extent of the dissemination. Freedom of speech is a fundamental value in any democracy, but not all speech deserves equal protection. More latitude should be given to speech that is in the public interest, as it is integral to, for example, the decisions we make at the ballot box, the exposure of public wrongdoing or the exposure of hypocrisy.
There is, however, a difference between content that is in the public interest and content that interests the public, and a gulf between responsible investigative journalism and vile defamation.
Ben Roberts-Smith is the tallest of the great poppies; a handsome Victoria Cross winner and highly decorated soldier turned successful businessman. Roberts-Smith’s main complaint is that in a series of articles on the pages of this and other Nine headlines by journalists Nick McKenzie, Chris Masters and David Wroe – themselves highly decorated in their fields – he was charged with committing heinous crimes, including murder, on the battlefields of Afghanistan. The main defense of publishers is that of the truth.
When the 10-week trial begins on Monday, Judge Anthony Besanko, sitting without a jury, will hear evidence on Roberts-Smith’s standing in the community, before attention turns to whether the editors can prove that the imputations they published about him are true.
In some ways, this is a war crimes trial masquerading as a libel action, conducted under the particular rules of engagement that apply in defamation law. On the one hand, like a prosecutor, publishers bear the burden of proof, but at the lower civilian level. The Roberts-Smith case will fail if the editors can prove, on a balance of probabilities, that the imputations their stories convey are matters of substantial truth.
Unlike standing in a criminal trial, Roberts-Smith has no practical right to silence. In order to explain the damage to his reputation, he will testify and be exposed to cross-examination.
Compared to the prosecutor’s position in a criminal trial, these questions favor the editors. In contrast, publishers do not have any of the coercive powers deployed by police and prosecutors in criminal investigations. They are powerless to execute search warrants or interview uncooperative witnesses.
There was no jail hearing to sort out and test the evidence. Publishers do not have access to the wealth of material generated during relevant investigations conducted by the Brereton investigation, the Australian Federal Police and the Office of the Special Investigator. These questions favor Roberts-Smith.
Superimposed on all of this, the trial will examine events that happened years ago halfway around the world and which are rightly subject to national security limitations. Some parts of the trial will take place behind closed doors, others in open court. The persistent global pandemic means that key witnesses will testify by video link from Afghanistan through interpreters. Police will be following the trial closely.
Roberts-Smith would be funded by Kerry Stokes, chairman of Nine’s bitter rival, the Seven Group. The costs to both sides will be mind-boggling – millions of dollars each – and out of proportion to the damages Roberts-Smith could reasonably expect to receive even if he succeeds in full.
The Roberts-Smith lawsuit will not test the outer limits of defamation law. This will, in my opinion, be proof of the defamation lawyer aphorism that it is truth or nothing; and the layman’s aphorism that in most cases the only real winners are the lawyers. But the stakes for both sides could not be higher. It will be an exciting competition.
Dr Matt Collins AM QC is a lawyer from Melbourne. He represented Nine in the action brought by former treasurer Joe Hockey, and Rebel Wilson in his action against Bauer Media.