War criminals, surgeons, Murdoch: What a wild defamation year we had in 2023

As we get to the end of yet another lap around the sun, it’s time to look back on one of the great Australian pastimes: suing for defamation. 

This year was particularly significant, with the first test of the public interest defence finally raised in former commando Heston Russell’s win over the ABC, Lachlan Murdoch abandoning his lawsuit against Crikey-owner Private Media, the first ChatGPT defamation case, as well as successful suits against Google for defamatory search results.

There also remains the ongoing Bruce Lehrmann matter against Network 10. And of course, who could forget Ben Roberts-Smith’s loss to the Nine newspapers over their publication of material that made him out to be a war criminal and a murderer?

As Professor David Rolph, a media law academic at the University of Sydney, described 2023: it was “a year for big-ticket defamation cases”.

Roberts-Smith vs Fairfax Media

Possibly the biggest defamation case in Australian history — with astronomical amounts of money involved courtesy of Seven West boss Kerry Stokes backing the former soldier — the lawsuit revolved around reporting from Nine journalists Chris Masters and Nick McKenzie that was alleged to have defamed Roberts-Smith as a war criminal.

In June, Justice Anthony Besanko found the newspapers proved to a civil standard that Roberts-Smith was complicit in the murder of four unarmed civilians while serving in the SAS in Afghanistan, as well as in the bullying and threatening of fellow soldiers. Roberts-Smith, who denies all wrongdoing, is appealing the decision, to be heard by the full bench of the Federal Court in February 2024. 

For their reporting, Masters and McKenzie were honoured at the 68th Walkleys with the first-ever Walkley Honour for Media Freedom, alongside a grant in their names, the Masters-McKenzie Grant for Investigative Journalism. 

As the case ran on, your correspondent had to consistently remind himself that Roberts-Smith had brought the case on himself as the plaintiff, bringing to light one of the biggest strategic risks for powerful people who sue for defamation. 

“Once you actually sue, you can’t control what other people think of you,” Rolph told Crikey. 

“In a way, defamation law is somewhat unusual, because it seeks to use the law to alter the way people think about you, to vindicate your reputation. Once you sue for defamation, all litigation is risky, but defamation litigation is particularly risky, because you can never control what comes out in court.”

Lehrmann vs Network 10, Lisa Wilkinson, Samantha Maiden, News Corp and the ABC

Bruce Lehrmann was thrust into the national spotlight in November 2021 after being accused of allegedly raping his former colleague, Liberal staffer Brittany Higgins, in Parliament House in 2019. He pleaded not guilty at trial, with a jury unable to reach a verdict. The jury was later discharged and a mistrial was declared due to a juror’s misconduct. The case was eventually dropped by prosecutors due to concerns over Higgins’ health and well-being. 

Higgins’ story came to prominence after a high-profile interview with Network 10’s Lisa Wilkinson on The Project in February 2021, in which her allegation was first publicly made alongside an interview published on news.com.au with Samantha Maiden. In February 2022, Higgins addressed the National Press Club in Canberra, and the speech was aired on the ABC.

In April this year, Lehrmann filed defamation proceedings against Wilkinson and Network 10, News Corp and Maiden, and the ABC. Acting for Lehrmann in each instance was Mark O’Brien, a defamation lawyer who also acted for Roberts-Smith. 

In May this year, News Corp and Lehrmann settled out of court for $295,000, while the ABC settled with Lehrmann in November for $150,000 as the Network 10 matter went to trial.

The trial is currently ongoing, with Higgins, as well as The Project producer Angus Llewellyn, Lisa Wilkinson, and Lehrmann’s former colleagues and bosses all giving evidence. 

Similarly to Roberts-Smith’s case, several details about Lehrmann’s personal life have come out over the course of the trial, including his alleged claims to bosses that he had a job lined up at ASIO, only for ASIO figures to say they “had never heard of him”. 

Lachlan Murdoch takes an L 

Lachlan Murdoch, now chair of News Corp, also tried his hand in the courts, suing Private Media, publisher of Crikey, for defamation. The article in contention was by our political editor Bernard Keane from June 2022 that described the Murdochs as “unindicted co-conspirators” in the crisis relating to the January 6 attacks on the US Capitol.

Lachlan Murdoch, who is also the CEO of Fox Corporation, dropped proceedings against Private Media soon after Fox News Network settled for US$787.5 million in a US case against Dominion Voting Systems, admitting it broadcasted false statements that Dominion’s voting machines had been rigged to steal the 2020 US presidential election from then-president Donald Trump.

Murdoch paid $1.3 million in Private Media’s legal costs on the condition that the entire $588,735 from a Crikey fundraising campaign was paid to the Alliance for Journalists’ Freedom, which Crikey had originally pledged to do regardless.

Russell vs ABC 

Former commando Heston Russell won his defamation suit against the ABC earlier this year, with the national broadcaster paying almost $400,000 in damages over allegations members of a platoon he led in Afghanistan executed a prisoner because they would not fit on a helicopter. 

In July 2021, changes to the uniform defamation laws introduced a public interest defence, which differs from the existing statutory qualified privilege defence by requiring an additional factor of the subjective belief of a publisher. 

Rolph told Crikey earlier this year that the ABC’s loss demonstrated what the public interest defence could look like in application. 

“It was clear from the [ABC’s use of] the defence itself that the subjective belief of the publisher is not going to be determinative,” he said. 

The public interest defence was also going to be relied upon by Private Media in the Murdoch proceedings before they were settled, and now has its next test case in high-profile surgeon Dr Munjed Al Muderis’ case against the Nine newspapers. 

Al Muderis vs Nine 

Dr Munjed Al Muderis came to national prominence almost a decade ago when he released a book about his experience as a first-year medical resident, detailing his refusal of Saddam Hussein’s decree to amputate the ears of Iraqi draft evaders in 1999.

Forced to flee Iraq, he came to Australia by boat as a refugee in 2000. Landing on Christmas Island and eventually in immigration detention in Western Australia, Al Muderis began practising medicine in Australia after being granted asylum. He became known as one of the world’s leading practitioners of osseointegration surgery, the insertion of prosthetic implants directly into bones. 

In September 2022, the Nine Network ran a 60 Minutes episode alongside articles in The Sydney Morning Herald and The Age, which Al Muderis claims defames him as a negligent surgeon who pressured his patients. 

Nine is relying on a number of defences including public interest. Matt Collins KC, appearing for Nine, said in his opening remarks that there “was a public interest in reporting what happens when surgery of this kind fails”, but did “not contend that Dr Al Muderis is some kind of monster. He obviously is not. To many of his patients … he’s a hero.”

The case is ongoing and is set down for judgment in the Federal Court on December 19.