Ben Roberts-Smith is now undefamable, thanks to the contextual truth defence

Ben Roberts-Smith is unquestionably the agent of his own demise. That much is obvious after his sensational defamation loss.

But behind the headlines there is another story. It’s about the power balance between public interest journalism and well-funded, big-name plaintiffs. It’s buried in the technical detail. Unpacked, it shines a light on the way our defamation laws suffocate press freedom, and how an underused defence called contextual truth may help restore equilibrium.

Roberts-Smith followed a pretty standard play in Australia. Press writes investigative piece about someone powerful. Powerful someone sues for defamation, silencing criticism and striking fear into editors nationwide. Think Christian Porter, Geoffrey Rush, Alan Jones, Chau Chak Wing, Craig McLachlan, Lachlan Murdoch and Roberts-Smith. It’s no wonder we’ve been called the defamation capital of the world. 

That’s the big picture. Now zoom in on the complexities, the gnarly little ways that plaintiffs can manipulate dark corners of the law to improve their position. One is “imputations”, defamatory meanings arising from a publication. 

In a defamation case, the plaintiff gets to define the imputations arising from the article. And that gives them one of their biggest strategic advantages. A truth defence must prove the truth of those imputations, rather than the actual words published. By choosing imputations, the plaintiff defines what truth the news publisher must prove. It’s Orwellian. 

Roberts-Smith made a strategic call to plead imputations that he murdered an unarmed and defenceless Afghan civilian and was a war criminal. That meant Nine newspapers and The Canberra Times had to prove he was guilty of murder. Anything less meant failure. 

In Murdoch’s case against Private Media, he chose an outlandishly literal interpretation of the line: “Trump is an unhinged traitor and the Murdochs are his unindicted co-conspirators”. He pleaded imputations including that he illegally conspired with former US president Donald Trump to incite an armed mob to march on the Capitol to physically prevent confirmation of the 2020 US election. Private Media did not plead a truth defence. 

Defences such as qualified privilege and more recently public interest are supposed to protect the press even when a truth defence cannot, although historically qualified privilege has been applied narrowly, offering little comfort. And the public interest defence is untested in Australia. That leaves news publishers exposed. And it threatens the principles that underpin press freedom. 

The purpose of public interest journalism is to stimulate public debate. Debate should be vehement, caustic and sometimes unpleasantly sharp. Erroneous statement is inevitable, and must be protected for freedom of expression to have the breathing space it needs to survive. That’s what the US Supreme Court said in the 1960s when it ruled that public figures have no action for defamation unless the publisher acted with malice.

The press serves the same purpose in Australia. But unlike the US we have no bill of rights, so our press lacks the same legal protection. Instead news publishers are left to pick through the remains of narrow and uncertain defences when they can’t prove the plaintiff’s version of the truth. 

In the Roberts-Smith and Murdoch cases, the publishers ran a lesser-known defence called contextual truth. It allowed them to plead, and prove, a different imputation from that alleged by the plaintiffs. It has to be more serious than the plaintiff’s imputation, and it has to relate to the same sector of the plaintiff’s reputation. 

In Roberts-Smith’s case, the contextual truth defence saved Nine on the imputations it couldn’t prove, such as that he assaulted his girlfriend. Nine had already proved that Roberts-Smith broke the moral and legal rules of military engagement and was a criminal, and that he had disgraced his country by his conduct in Afghanistan. Those imputations were more damaging and they all had the same flavour — involving violent conduct towards a vulnerable person and an attempted cover-up. The contextual truth defence succeeded.

The judge went even further, finding that because Nine proved that Roberts-Smith was a war criminal and had disgraced his country, Roberts-Smith literally had no reputation left to harm. Because of the contextual truth defence, he is now undefamable. 

In the Murdoch case, contextual truth shifted the emphasis away from Murdoch’s pleading of a literal, criminal conspiracy with Trump. It refocused the case on the story’s intended meaning: that Murdoch was morally and ethically culpable for the January 6 insurrection because he allowed Fox News to promote Trump’s “Big Lie”. In that way, the defence counteracted the strategic impact of Murdoch’s pleaded imputations. 

Maybe this all sounds semantic. Lawyers having fun with words for profit. However, what seems like legal minutiae actually feeds a much bigger picture.

Put simply, powerful defamation plaintiffs have too much control over public interest journalism in Australia. Our laws hand it to them. That’s why it’s important to see the contextual truth for what it is — a small but significant instrument for resetting the balance. 

Disclosure: Hannah Marshall is a partner at Marque Lawyers and formed part of Private Media’s defence team for the Murdoch case.