In July last year, BlackBay Lawyers published an article about the upcoming trial in defamation proceedings brought by former Australian army major and special forces commando Heston Russell against the Australian Broadcasting Corporation (ABC) and two of its journalists. Mr Russell commenced proceedings in 2022 in relation to several ABC publications that alleged that he and his platoon were involved in the murder of a prisoner while serving in Afghanistan in 2012. The case was of particular interest because it would be the first time that the new defence of public interest (which came into effect on 1 July 2021) would be considered at trial.
The trial took place over nine days in July and August. Mr Russell gave evidence, as did Mark Willacy and Josh Robertson, the two journalist respondents. On 16 October 2023, Justice Michael Lee handed down his decision. Justice Lee found that the respondents’ public interest defence (the only defence argued by the respondents at trial) had failed. Mr Russell was awarded $412,315.48 in damages and interest, plus costs.
What is the public interest defence?
On 1 July 2021, a number of changes to the Defamation Act 2005 (NSW) (Act) came into effect. One of the major ones was the introduction of a dedicated public interest defence. In his second reading speech following the introduction of the Defamation Amendment Bill 2020 (Bill) to the NSW Legislative Assembly, then Attorney General Mark Speakman called the introduction of the new defence “one of the most significant reforms in the bill”.
The Explanatory Note to the Bill (Explanatory Note) explains that the new defence aims to promote one of the objects of the Act, which is to ensure that the law of defamation does not place unreasonable limits on freedom of expression, and in particular on the publication and discussion of matters of public interest and importance.
The defence of statutory qualified privilege (s.30 of the Act), which was intended to cover matters of public interest, was historically challenging for media defendants to establish. Submissions to the Defamation Working Party set up by the Council of Attorneys General in 2018 to undertake a review of defamation law argued, as Mr Speakman noted in his speech, that the defence did “not adequately protect publication regarding matters of public interest”, and “had not been successfully argued by a mass media defendant since it was introduced.” This second point is not strictly correct, but it is true that the defence was rarely a winner for media defendants, despite its inclusion of public interest as a relevant consideration (which in theory made it more useful to media defendants than common law qualified privilege, which did not provide a defence for publication to the world at large).[1]
A major issue was seen to be the approach taken by courts to the reasonableness test. A complaint raised by the media (justified or not) was that the list of factors to be considered when deciding if a defendant’s conduct was reasonable was often applied as a checklist. According to the Explanatory Note, s.30 has been largely unsuccessful in liberalising the approach taken by the courts to publications concerning issues that may be of public interest.
The new defence is set out in s.29A of the Act, and like s.30, contains a list of non-mandatory factors that the court may take into account. The new defence provides that it is a defence to a publication of defamatory matter if a defendant proves that:
the matter concerns an issue of public interest; and
the defendant reasonably believed that the publication of the matter was in the public interest.
In determining whether the defence is established, the Court must take into account all of the circumstances of the case, and may take into account the following:
the seriousness of any defamatory imputation carried by the matter published,
the extent to which the matter published distinguishes between suspicions, allegations and proven facts,
the extent to which the matter published relates to the performance of the public functions or activities of the person,
whether it was in the public interest for the matter to be published expeditiously,
the sources of the information in the matter published, including the integrity of the sources,
if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person's identity to be kept confidential (including, for example, to comply with an applicable professional code or standard),
whether the matter published contained the substance of the person’s side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person,
any other steps taken to verify the information in the matter published,
the importance of freedom of expression in the discussion of issues of public interest.
Russell v ABC
Prior to the decision in Heston Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223, the public interest defence had been considered in just two cases - Barilaro v Google LLC [2022] FCA 650 and Murdoch v Private Media Pty Ltd [2022] FCA 1275. Justice Lee followed the approach taken by Justices Rares and Wigney in those cases in interpreting and applying the defence.
His Honour determined that the defence has the following three elements:
The matter concerns an issue of public interest;
The publisher believed the publication of the matter was in the public interest; and
The publisher’s belief that the publication of the matter was in the public interest was reasonable.
His Honour found that the first element (whether a matter concerns an issue of public interest) involves an objective determination, whereas the second element is concerned with the publisher’s actual state of mind at the time of publication – ie the publisher must prove that they believed that publication of the matter was in the public interest. His Honour noted that the focus of this element is the publisher’s belief, not the truth of what was published.
The ABC argued that its journalists had a reasonable belief that what they were reporting on regarding Mr Russell and his platoon was true at the time. It is important to note that while the ABC initially pleaded the defence of justification (or truth) it abandoned this defence before trial.
His Honour found that the first and second elements of the public interest defence were established. The success of the defence turned on whether the respondents could prove the third element – reasonableness.
Justice Lee found that the respondents’ belief that their reporting was in the public interest was not reasonable.
His Honour considered various aspects of Willacy’s, Robertson’s and the ABC’s conduct in reaching this conclusion. One such aspect was Mark Willacy’s approach to his source for the allegation that Mr Russell and his platoon had executed an unarmed Afghan prisoner. Willacy had given that source the pseudonym ‘Josh’, ostensibly to protect Josh’s identity (although bizarrely the ABC published Josh’s photograph and other information which meant that he was able to be identified). Mr Russell contended that the ABC should have taken steps to corroborate Josh’s (extremely serious) allegation. His lawyers also led evidence that Josh had told Mr Willacy that his memory was “fuzzy”. His Honour found that Mr Willacy did not do enough to corroborate Josh’s allegation, finding:
“He did not ascertain, from persons with experience in Afghanistan or anyone with any kind of expertise or on-the-ground military experience, whether Josh’s allegations were plausible...A journalist acting reasonably would have done more to explore sources of potential corroboration.”
It’s important to note that Josh did not identify Mr Russell’s platoon as the platoon responsible for the alleged killing. The incident also occurred, according to Josh, in mid-2012, when Mr Russell’s platoon was not even deployed to Afghanistan. In an unusual move, ‘Josh’ issued an apology to Mr Russell after the conclusion of the proceedings.
Conclusion
S.29A creates a policy-based exemption from liability for the publication of defamatory matter regardless of whether the matter is substantially true, or a fair comment on true facts.
It is a major step to excuse from liability a defamatory publication which has caused or is likely to cause serious harm to an individual’s reputation and which is not shown to be substantially true. This is why, at common law, privilege defences were only available for publications to a confined number of specific recipients who shared a common interest, or on special occasions such as proceedings in Parliament or in a court or tribunal.
The damage caused by a defamatory publication to tens or hundreds of thousands of people is much greater than the damage likely to flow from publication to a limited number of people who share a common interest. That is why the defences in s.22 of the 1974 Act and s.30 of the 2005 Act had reasonableness of conduct, and not merely honesty, as their criterion.
The list of factors in s.29A(3) shows that the legislature still considered it appropriate and necessary to include such a list in the section, even if it was also clear that the list was not to be used as a “checklist” but only “to the extent the court considers them applicable in the circumstances”. This is in contrast to s.4 of the UK Act, on which s.29A was otherwise expressly modelled, and which did not contain any list of factors to be taken into account.
The notion of “reasonableness” in the context of defamatory publications has been considered in other contexts. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the Court referred at 573 (footnote 291) to the test of reasonableness described in the joint judgment in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 136-137.
At 137 in that case, Mason CJ, Toohey and Gaudron JJ held:
For that reason the defendant should be required to establish that the circumstances were such as to make it reasonable to publish the impugned material without ascertaining whether it was true or false. The publisher should be required to show that, in the circumstances which prevailed, it acted reasonably, either by taking some steps to check the accuracy of the impugned material or by establishing that it was otherwise justified in publishing without taking such steps or such steps as were adequate. …
In other words, if a defendant publishes false and defamatory matter about a plaintiff, the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly (i.e. not caring whether the matter was true or false), and that the publication was reasonable in the sense described.
In Lange at 574, the Court described the requirements of reasonableness in substantially the
same terms:
Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.
It is clear from these passages that when the High Court spoke of “reasonableness of conduct” as the criterion for the operation of the expanded common law qualified privilege defence, it was setting a standard of conduct for publishers, particularly in relation to taking steps to verify the accuracy of the defamatory material and seeking comment from the person defamed.
The outcome in the Russell case suggests that the new public interest defence does not mark out a new freedom for the media to publish, but simply covers old ground, ground on which the media has fought, and usually lost, in the past.
[1] The qualified privilege defence remains part of the Defamation Act 2005 but was amended to narrow the list of factors for assessing reasonableness; however this change likely had little effect as the list of factors was not exclusive in any event.
