Public Interest Defence

Following a series of high-profile massive payouts for defamation (see Rush case note ), new laws have been introduced to address some of the problems with the uniform defamation laws that apply throughout the nation.  In NSW, these laws are contained in the Defamation Amendment Bill 2020 which was passed on 6 August 2020 and implement the nationally agreed changes to the law of defamation.

Special Forces Commando Heston Russell and ABC Defamation Case

July 2023

The public interest defence is a new defence for defamation law introduced in 2021 (see further details here). It has not been tested but any claims will come down to a question of reasonableness. Was it reasonable to present the material?  If you look at the facts of the Russell Case, the source was not a witness to the allegation but heard something on the radio.  Was this reasonable or the ABC to present this material?  

Ben Roberts-Smith Defamation Case

June 2023

This decision is tragic for Australia, and it proves yet again if you are going to sue for defamation “you better line up all your ducks!”

William Duma and Australian Financial Review

February 2023

As written by Chris Merritt in the Australian (click here to read the whole article), the Australian Financial Review was ordered to pay $545,000 to the man it defamed: Papua New Guinea politician William Duma.

In the judgment, Federal Court Justice Anna Katzmann goes into excruciating detail about the journalistic methods of two AFR reporters, Angus Grigg and Jemima Whyte, who received leaked documents from confidential sources and wrote a series of articles about Duma and corruption in 2020. Grigg, the main author, contacted Duma before publication but Katzmann found Grigg’s emails had been misleading in important respects and the reporters “never invited him to respond to the allegations they intended to publish”. The judge considered it “improper, unjustifiable and lacking in bona fides” not to correct errors in the articles when they had been pointed out…

Because their articles contained “extremely serious defamatory imputations”, the judge believed they should have taken particular care to ensure the facts were fairly and accurately reported.

“The evidence disclosed they did no such thing,” the judgment says. “In several instances, and contrary to what was pleaded in the defence, the journalists testified that they did not believe that what they had written in the matters complained of was true. “In some instances, one or both of them conceded that statements they had made in the articles were not true,” the judgment says.

The media has complete control over something more decisive: its own procedures. When it comes to public interest journalism that means getting your facts right, getting the other side of the story, conducting yourself fairly and correcting errors promptly.

In the Duma case, none of those things happened at the Financial Review. That is why they lost. The newspaper did not seek to defend the truth of what it had published, choosing instead the defence of statutory qualified privilege which depended on proving that it had conducted itself reasonably.
That failed because, according to the judgement, the reporters concerned did not take proper steps to verify the accuracy of the material upon which they relied, and while they sought comment from Duma about some things they intended to publish “they initially misled him and did not fairly publish the substance of his responses”.

These failings matter because public interest journalism is vital to free societies. It is the institutional version of freedom of expression.”

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