The first decision applying the new public interest defence to defamation, introduced under s 29A of the Defamation Act 2005 (NSW) in July 2021, has now been handed down in the Federal Court.
The decision in Russell v Australian Broadcasting Corporation (No 3)  FCA 1223 ultimately found that the Australian Broadcasting Corporation (ABC) and its journalists failed to make out the defence. In coming to his decision, Justice Lee provided a detailed analysis of the new defence, including consideration of the common law and statutory history of defamation law which led to its introduction.
His Honour observed that the facts of this case did not "present a good vehicle for demonstrating that the defence has real work to do in making appropriate allowances for editorial judgment and recalibrating the balance between two important rights which often exhibit tension: the right to freedom of expression on matters of public interest and the right to reputation".
The proceeding related to reports published by the ABC which alleged that members of the November Platoon in the 2nd Commando Regiment of the Australian Defence Force were involved in serious misconduct and war crimes in Afghanistan.
Mr Russell commenced proceedings for defamation over the two articles and associated television and radio broadcasts. In a preliminary judgment, Justice Lee found that the defamatory imputations particularised were not conveyed by the radio broadcast.
At the trial, the only remaining defence was the public interest defence.
Key findings about the defence
His Honour held that:
Public interest defence
Ultimately, Justice Lee found that while the Respondents believed that the publication of the matters complained of was in the public interest, this belief was not objectively reasonable and, accordingly, they could not make out the s 29A defence.
His Honour considered that the journalists did not sufficiently investigate and corroborate the allegations and failed to distinguish between suspicions, allegations and proven facts. His Honour was critical of the Respondents for not disclosing in the matters complained of the caveat that their source had given about his recollection being fuzzy.
Justice Lee also found that the ABC's urgency in publishing had been "commercial and vindicatory", and given the seriousness of the imputations, further care should have been taken as to the detail of what was published.
Since the Respondents' only defence was unsuccessful, Justice Lee awarded Mr Russell $390,000 in general damages.
His Honour found that Mr Russell's poor conduct on the witness stand (particularly in relation to his evidence regarding a false invoice provided to the Respondents) was not so exceptional as to justify a finding that he only be entitled to nominal damages. His Honour declined to take the adverse credit findings into account in mitigation of damage, but did consider them in finding that aggravated damages should not be awarded.
Further, while Justice Lee did not find Mr Russell's evidence as to hurt to feelings persuasive, and that his actions were consistent with someone who had "not suffered significant hurt but rather embraced the public controversy", his Honour ultimately concluded that he could not disregard the evidence from seventeen witnesses that Mr Russell had in fact suffered real hurt to feelings and should therefore be compensated by an award of damages, which took into account the significant extent of publication and the seriousness of the imputations.
While this first consideration of the s 29A public interest defence was ultimately unsuccessful for the Respondents, Justice Lee's judgment provides some helpful guidance about the application of the defence that can be taken into account by media publishers prior to publication. In particular:
Natasya Currie | Law Graduate