High profile case highlights potential risks in defamation proceedings

The Federal Court of Australia recently handed down its decision in the defamation proceedings brought by Ben Roberts-Smith against various media outlets and journalists. The high-profile cases attracted significant public and media attention.

In the proceedings, Mr. Roberts-Smith alleged that various publications communicated imputations (meanings) concerning unlawful and unethical conduct in the course of his military service in the Special Air Service Regiment. He alleged that certain publications also communicated imputations to the effect that he had engaged in bullying other defense personnel, committed family violence and that he was a hypocrite as he publicly supported family violence prevention initiatives while allegedly committing domestic violence. Mr. Roberts-Smith alleged that these claims were false and defamatory.

The media outlets and journalists relied on defenses of justification or substantial truth and other defenses. They also relied upon contextual truth defences, which allowed them to plead alternative meanings and establish them to be true to argue that the false and defamatory imputations did not cause further reputational damage beyond the true ones.

The outcome was that Mr. Roberts-Smith was largely unsuccessful in his claims. The respondents had established the substantial and/or contextual truth of many of the imputations in issue. The court will consider the consequential orders, including in relation to costs, at a later hearing.

Takeaways for clients in defamation proceedings.

While most defamation proceedings will not attract as much interest as those of Mr. Roberts-Smith, they are inherently public in nature. Pursuing defamation proceedings can draw further attention to defamatory publications and imputations and come with the risk that a court will find that a respondent has succeeded in establishing a defense, including one of substantial truth.

On the other hand, successfully suing for defamation may in some cases be the only way in which to restore a reputation.

As in most litigation and disputes many cases do not end up in court and there are many interim steps before a case is heard in court. These interim steps, such as correspondence and mediation, can yield a positive outcome. In defamation matters, concerns notices and offers to make amends are valuable tools for prompt and cost-effective dispute resolution. Each has formal requirements to be effective and it is advisable to have them prepared by an experienced defamation lawyer.

Important considerations

If these interim steps are unsuccessful you may consider escalating the matter and you will need careful case management for your claim to be successful. There are several important considerations when deciding whether to pursue defamation proceedings and it is important to access legal advice at an early stage:

5. Defamation cases are about the harm caused to a person’s reputation. While subjective feelings of having been offended or feelings of having been treated unfairly may be relevant to the amount of damages awarded, defamation cases are fundamentally about whether a plaintiff’s reputation has been harmed.
6. Defamation cases are usually heard in open courts and can attract a degree of attention from the media, people connected with the parties and others.
7. Where a defendant raises a defense of justification or substantial truth, a court will need to consider and make a finding about whether what was published or communicated about the plaintiff was substantially true. If the defense succeeds, the indirect result will be that there is a finding – on the public record – that what was alleged to have been false and defamatory was in fact substantially true. This ‘backfiring’ of a claim can result in further reputational damage, often available to a larger audience and with greater credibility than the original publication.
8. Where a defendant raises a defense of substantial truth in relation to a criminal act, the court will need to be persuaded of its truth to a very high standard of satisfaction but does not have to apply the criminal standard of proof beyond a reasonable doubt. As a result, a plaintiff bringing a defamation proceeding may inadvertently be putting themselves at risk of a civil finding that they are engaged in an act which – if proven to the criminal standard – would result in them being found guilty of a crime. While this does not result in criminal penalties, it does come with the substantial reputational risk of having been found to have been involved in the relevant conduct.
9. Costs are a very significant factor in defamation proceedings. Where the requirements in relevant legislation for pre-litigation steps (such as issuing a concern notice) are met, costs are often recoverable to a greater extent than in most court proceedings. This offers some protection to those who litigate over defamation matters, in that they can recover a substantial portion of their legal costs. On the flip-side, the risk to an unsuccessful party is that a cost order against them is likely to be very substantial. In some instances, a party who has a minor victory and is awarded a small amount in damages, may have that offset by an adverse cost order.

Before suing in defamation or responding to a claim, it is important to obtain legal advice from litigation lawyers experienced in defamation matters. The earlier advice is sought, the better, as it ensures a realistic understanding of the legal issues likely to arise and a consistent strategy from the outset.

At PCL Lawyers we have successfully helped clients in defamation matters. Reputational issues are complex and we are experienced and can quickly identify the issues and strategize a plan to resolve the dispute with you. We work to obtain a swift, effective and favorable outcome for our clients.

About The Author

Roland Müller leads our commercial litigation team. He is a highly-experienced lawyer, an…