The Ben Roberts Smith case: Soldier picked a fight with Nine

Nine did not instigate litigation, and in that sense was less subjective than Roberts-Smith. It emerged unscathed. A rarity for such a prestigious publisher. Credibility increased for nine newspapers and three of their star journalists.

Aging journalist Nick Mackenzie addressed the media after Thursday’s James Brickwood

Aspects of this case are particularly noteworthy.

It is astonishing that this was, in effect, a war crimes trial masquerading as defamation. At the time Nine’s article was published, Australian libel law had only limited defenses to protect publishers who acted reasonably in all circumstances. Its defense was widely perceived as ineffective and the Nine was unreliable. As a result, the trial focused less on journalistic competence and more on whether Nine could prove the substantive truth of the source’s claims.

The result is understandable, but unsatisfying. War crime allegations merit criminal trials by jury. It is noteworthy that private media organizations have been able to investigate, publicize and defend these allegations when the King has had all the power to prosecute them so far.

Roberts-Smith has never been charged, much less convicted, but will forever bear the stigma of being found by a judge to be a war criminal under civil standards. . Further consequences, such as a review of Roberts-Smith’s reputation and consideration of criminal prosecution, are entirely possible.

The opposite result would also have been unsatisfactory. If Nine had lost the case, he would have been ordered to pay a huge amount of damages without focusing on the merits of journalism in how he investigated, confirmed, and checked the content of the report. deaf. In other jurisdictions such as the UK and US, these are the primary defenses. At the time these articles were published, there was no defense in Australian law to consider whether this was an article worthy of being told in the public interest.


Still, that was certainly the crux of it. These were stories that always deserved to be told. It shouldn’t have taken the most expensive trial in the history of the country to prove it.

Publishers and broadcasters, no matter how well-funded, cannot afford to defend many of these types of lawsuits. For all media outlets, faced with the dizzying costs and risks involved in preparing and defending full-blown investigative reporting, the temptation is to retreat to cheaper and safer options. Prefers trivia to content, and comments to news. We may never know what important stories are spiked or never pursued in the first place because publishers and broadcasters lack the will or the resources to fight for the public’s right to know. I can’t.


At the same time, and equally alarming, few plaintiffs have access to the necessary resources to pursue a lawsuit of this magnitude. Roberts Smith was a rare exception. These resources gave him options not available to most Australians. His decision to pursue the case was exposed as an irrevocable mistake. But publishers and broadcasters are wary of lawsuits and know that exposing allegations of wrongdoing by the rich and powerful will cost them more than the average person. That is the exact opposite of what our laws should seek to promote.

Dr. Matt Collins AM KC is a media law attorney. He has represented Nine in numerous defamation lawsuits.

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