A win for the press, a big loss for Ben Roberts-Smith: what does this judgment tell us about defamation law?

• An appeal may still be on the cards, but this is a high-profile loss for a very prominent person.
• More broadly, this case shows how hard it is to use defamation law to repair any perceived damage to your reputation.
• Read more:
  Why defamation suits in Australia are so ubiquitous — and difficult to defend for media organisations

What was this case about?

• The case centred on several defamatory meanings (or, as they’re known in defamation law, “imputations”) that Roberts-Smith said the papers had made against him.
• Among these were that he’d killed unarmed Afghan male prisoners and ordered junior soldiers to execute others in Afghanistan between 2006 and 2012.
• That means to win this case, they needed to prove the meanings conveyed by their reporting – even if those meanings were unintended – were true.
• Besanko, reading a summary judgment today, said the newspapers were able to establish the substantial truth of some of the most serious imputations in the case.

What does this case tell us about defamation in Australia?

• But the fact this widely scrutinised case yielded such astonishing testimony, day in and day out, shows how risky it is to use defamation law to restore perceived injury to one’s reputation.
• Defamation law is seeking to correct people’s views about the plaintiff.
• But it’s open to doubt that defamation law is actually any good at securing its own stated purpose of changing people’s minds about the plaintiff.

The 2021 defamation law reforms

• The law that applies in the Roberts-Smith case is the defamation law we had before major reforms introduced in July 2021 across most of Australia.
• These reforms introduced a new defence known as the public interest defence.
• If a case like this were litigated today following these reforms, it is highly likely the publisher would use the new public interest defence.