Soldier loses war of words in defamation case

The Federal Court of Australia dismisses high-profile defamation case involving a highly recognised former Australian soldier in favour of big media outlets.

In issue

• Whether defences of justification (substantial truth) or contextual truth were available with respect to alleged defamatory statements contained in articles published by the respondents; and
• Whether there was reputational harm arising from the alleged defamatory statements.

The background

Ben Roberts-Smith (applicant) brought three actions in defamation against the Sydney Morning Herald, The Age, Canberra Times and the three journalists who published articles about him (respondents). The three proceedings were tried and heard together.

The applicant was a member of the Special Air Service Regiment (SASR) between 2003 and 2013. During this period he undertook six tours of Afghanistan, received various medals for his service and became a highly decorated serving member of the Australian Defence Force.

In June and August 2018 the respondents variously published articles accusing an unnamed soldier of committing acts of bullying, assault and war crimes while touring Afghanistan, and made further allegations of domestic violence.

Although the applicant was not named in these articles, his identity was not in dispute. The applicant alleged that the articles gave rise to meanings that were defamatory of him, known as ‘imputations’. The applicant alleged that, when the articles were read and given their natural and ordinary meaning, they gave rise to 14 imputations including that the applicant murdered an unarmed and defenceless Afghan civilian by kicking him off a cliff and procuring the soldiers under his command to shoot him, that the applicant committed murder by pressuring a newly deployed and inexperienced SASR soldier to execute an elderly unarmed Afghan in order to 'blood the rookie', that the applicant committed murder by machine gunning a man with a prosthetic leg and that he took the prosthetic leg back to Australia and encouraged his soldiers to use it as a novelty beer drinking vessel.

The applicant claimed that the publication of the articles and the imputations contained therein caused him severe reputational harm.

The decision at trial

The respondents relied on two defences. The first was the defence of justification (or substantial truth) under section 25 of the Defamation Act 2005 (NSW) (the Act). To establish this defence the respondents were required to prove that the imputations were 'substantially true', i.e. that they were 'true in substance or not materially different from the truth'. The second defence was a defence of contextual truth under section 26 of the Act, in that if the imputations were not found to be the substantial truth then they did not cause further damage to the applicant’s reputation.

While the applicant relied on his good character relating to his military service and record, Besanko J did make a finding that: '…the applicant was not an honest and reliable witness in the many areas I will identify'.^[1]

In the circumstances Besanko J ultimately held that he was satisfied that the respondents had established, on the balance of probabilities, that 11 of the 14 imputations arising from the articles were substantially true (the effect of which was that the defence of justification applied to the extent of those imputations).

As regards to the remaining imputations, which included that the applicant had committed an act of domestic violence, his Honour held that:

1. The respondents had not shown that those remaining imputations were substantially true, and were therefore defamatory; however
2. The imputations which were found to be substantially true were so serious that the applicant had no reputation capable of being further harmed (the effect of which was that the defence of contextual truth applied to the extent of those remaining imputations).

The proceedings were therefore dismissed.

Implications for you

This decision is an example of the risk which a claimant runs of losing a claim for defamation if a defendant is able to make out one or more of the various defences provided for under the Act.

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555

^[1] At [173].