2023 might have been one of the biggest years in defamation law history, and not only because of Ben Roberts-Smith’s bombshell loss against the Nine newspapers or the ongoing Bruce Lehrmann trial against Network 10. The past year brought with it a number of changes to Australia’s defamation laws, as part of a raft of reformation updates in the 2020s designed to make the law more workable in the modern age.
In 2024, however, there are just as many cases and changes set for the defamation courts.
The biggest change that will come into effect addresses digital intermediaries, introducing a new innocent dissemination defence for actors such as search engines, subject to a complaints process. Director of the Media and Communications Law Research Network, Associate Professor Jason Bosland, told the Law Society Journal last year that the current defence of dissemination doesn’t currently “adequately balance freedom of expression with the right to reputation”.
Roberts-Smith vs Fairfax Media 2: Electric Boogaloo
Last year, possibly the most significant defamation case in Australian history reached, at least temporarily, its conclusion. In June, Justice Anthony Besanko found to a civil standard that the Nine newspapers had proved Ben Roberts-Smith VC, MG, Australia’s most decorated living soldier, 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. Journalists Nick McKenzie and Chris Masters were honoured at the 2023 Walkley Awards for their reporting, with a new grant established in their names.
Roberts-Smith denies all wrongdoing and is appealing the decision on the grounds of truth. Roberts-Smith’s appeal filing claims Besanko erred in finding he executed EKIA 57 at Whiskey 108, that he kicked an Afghan man named Ali Jan off a cliff before murdering him, as well as that Besanko erred in making his findings relating to contextual truth.
The case is set to be heard by the full bench of the Federal Court and is set down for February 5.
Lehrmann vs Network 10
The trial between Bruce Lehrmann and Network 10 will come to its conclusion in 2024, at least for the time being. Lehrmann rose to national prominence in November 2021 after being accused of allegedly raping his former colleague, Liberal staffer Brittany Higgins, in Parliament House in 2019. Higgins would later give interviews with News Corp’s Samantha Maiden and Network 10’s Lisa Wilkinson, as well as address the National Press Club in a speech televised by the ABC.
In April 2023, Lehrmann, who denies all wrongdoing, sued Wilkinson and Network 10, as well as News Corp, Maiden and the ABC for defamation, later settling with News Corp and the ABC.
The trial concluded in late 2023, with closing written submissions made by Lehrmann’s lawyers stating that his “evidence was in a number of respects unsatisfactory”, but that he should still receive “substantial damages”.
“Findings that Mr Lehrmann was on occasions dishonest … are a serious matter which reflect poorly on him,” the submissions from lawyers Steven Whybrow and Matthew Richardson read.
“But they are a very different thing from the allegation that he raped a young woman, and it cannot seriously be suggested that such findings would mean that the publication of the rape allegation, on national television, caused no or little real damage to his true reputation.”
The trial is next set for February 13.
Al Muderis vs Nine
Prominent prosthetic surgeon Dr Munjed Al Muderis will see his case continue against Nine, claiming they defamed him as a negligent surgeon who pressured his patients into procedures after a 60 Minutes episode and articles in the Nine papers ran in September 2022.
One surgeon featured in the publications by Age investigative journalist Charlotte Grieve claimed Al Muderis performed surgery on a psychotic homeless patient, who was found 72 hours post-operation walking around a train station on an infected stump.
Al Muderis came to national prominence a decade ago after releasing a book about his experiences fleeing Saddam Hussein’s Iraq as a first-year resident after refusing decrees to amputate the ears of draft evaders in 1999. Coming to Australia by boat as a refugee, his career in medicine in Australia has led to him becoming known as one of the world’s leading practitioners of osseointegration surgery — the insertion of prosthetic implants directly into bones.
The case returns to the courts on February 5.
Latham vs Greenwich
The ongoing defamation battle between former NSW One Nation leader Mark Latham and independent Sydney MP Alex Greenwich will also continue this year.
Greenwich is suing Latham for defamation over a tweet posted in March 2023, as well as remarks made to The Daily Telegraph in April.
Greenwich alleges the tweet suggests he is not fit for public office “because he engages in disgusting sexual activities”, and that the Telegraph remarks suggest he is “a disgusting human being who goes to schools to groom children to become homosexual”.
Latham denies that those imputations are made out, and will be relying on a number of defences, including the new threshold introduced last year for serious harm that was introduced generally to mitigate trivial defamation claims. Latham will also seek to rely on a public interest defence for the comments made in The Daily Telegraph.
The case, which will not be held before a jury, is set down for some point in 2024 after mediation attempts failed.
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