While there is no consensus as to how the balance between the rights to reputation and freedom of expression ought to be struck,some propositions are uncontroversial. Incalculable damage to reputation can be done by the publication or broadcast of defamatory content.
Damage is generally proportional to the seriousness of the imputations and the extent of dissemination. Freedom of expression is a fundamental value in any democracy,but not all speech is deserving of equal protection. Greater latitude should be accorded to speech that is in the public interest,because it is integral,for example,to the decisions we make at the ballot box,the exposure of public misfeasance,or uncovering 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 base smears.
Ben Roberts-Smith is the tallest of tall poppies;a handsome Victoria Cross winner and highly decorated soldier turned successful businessman. Roberts-Smith’s central complaint is that,in a series of articles on the pages of this and other Nine mastheads by journalists Nick McKenzie,Chris Masters and David Wroe – themselves highly decorated in their field – he has been accused of committing heinous crimes,including murder,on the battlefields of Afghanistan. The publishers’ principal defence is one of truth.
When the 10-week trial begins on Monday,Justice Anthony Besanko,sitting without a jury,will hear evidence about Roberts-Smith’s standing in the community,before attention turns to whether the publishers can prove the imputations they published about him to be true.
In some ways,this is a war crimes trial masquerading as a defamation action,conducted under the peculiar rules of engagement that apply in defamation law. On the one hand,like a prosecutor,the publishers bear the burden of proof,but to the lower civil standard. Roberts-Smith’s case will fail if the publishers can prove,on the balance of probabilities,that the imputations their stories conveyed are matters of substantial truth.
Unlike the position in a criminal trial,Roberts-Smith has no practical right to silence. In order to explain the damage to his reputation,he will give evidence and be exposed to cross-examination.
Relative to the position of the prosecutor in a criminal trial,these matters favour the publishers. On the other hand,the publishers have available to them none of the coercive powers that are deployed by police and prosecutors in criminal investigations. They are powerless to execute search warrants or conduct interviews with uncooperative witnesses.
There has been no committal hearing to tease out and test the evidence. The publishers do not have access to the wealth of material generated during relevant investigations conducted by the Brereton inquiry,the Australian Federal Police and the Office of the Special Investigator. These matters favour Roberts-Smith.
Overlaid on all of that,the trial will examine events that occurred years ago on the other side of the world and that are properly the subject of national security limitations.Parts of the trial will be heard in camera,others in open court. The continuing global pandemic means that key witnesses will give evidence by video-link from Afghanistan through interpreters. Police will be closely monitoring the trial.
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Roberts-Smith is reportedly being bankrolled by Kerry Stokes,chairman of Nine’s bitter rival,the Seven Group. The costs to both sides will be eye-watering – millions of dollars each – and disproportionate to the damages that Roberts-Smith could reasonably expect to be awarded even if he is wholly successful.
The Roberts-Smith trial will not test the outer boundaries of defamation law. It will,to my mind,be proof of the defamation lawyer’s aphorism that it’s truth or nothing;and the layperson’s aphorism that,in most litigation,the only real winners are the lawyers. But the stakes for both sides could not be higher. It will be a compelling contest.
Dr Matt Collins AM QC is a Melbourne barrister. He represented Nine in the action brought by former treasurer Joe Hockey,and Rebel Wilson in her action against Bauer Media.