Wrong Vehicle: Russell v Australian Broadcasting Corporation (No 3) and the new defence of public interest

What you need to know

• The public interest defence requires the defendant to prove they held a reasonable belief the publication was in the public interest
• A publisher must prove that they actually turned their mind to the question
• It remains unclear whether the existence and reasonableness of the belief the publication is in the public interest are ongoing requirements for continuing publications

What you need to do

• Be careful the language used in the publication does not rise above the actual level of certainty the publisher holds about the facts in question
• Give the subject of an article a fulsome overview of all the allegations being made in relation to them and provide them an opportunity to respond
• Each person involved in the publication process must ensure they are satisfied it is in the public interest

Background

In September 2022, Mr Heston Russell, a former Major and Commando Officer within the Special Operations Command of the Australian Defence Force, initiated defamation proceedings against the ABC and two of its journalists – Mark Willacy and Josh Robertson – in relation to an article published in November 2021 (the November Article) and related TV and radio broadcasts. In Russell v Australian Broadcasting Corporation [2023] FCA 38, Justice Lee ruled the November Article, and three other associated publications, conveyed several defamatory imputations. These included that Mr Russell, and his former platoon, the November Platoon, were involved in the shooting of an unarmed Afghan prisoner in 2012 and that their conduct in Afghanistan was the subject of an active criminal investigation. The ABC argued the publication was protected under the new s 29A defence of public interest, introduced in the 2021 amendments to the Uniform Defamation Legislation. This case marks the first real application of the defence since its introduction.

The section 29A Public Interest Defence Test

The public interest defence contained in section 29A(1) of the Defamation Act 2005 (NSW) has three elements:

1. the matter concerns an issue of public interest;
2. the defendant believed that the publication of the matter was in the public interest; and
3. the defendant's belief was reasonable.

Lee J provided a useful overview of the tests for each element.

1. The matter concerns an issue of public interest (s 29A(1)(a))

As Lee J set out in his judgment, whether the matter concerns an issue of public interest is an objective test. In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Dawson, McHugh and Gummow JJ reasoned that "the defamation must be published in the course of or for the purposes of a discussion of the conduct of some person or institution that invites public criticism or discussion". In that same judgment, their Honours described the phrase "in the public interest" as being "essentially a value judgment as to whether the public would benefit from the subject being discussed publicly". Mr Russell did not dispute the published matters concerned an issue of public interest.

2. The defendant believed that the publication of the matter was in the public interest (s 29A(1)(b))

Lee J stressed this test "directs focus to the publisher's belief, not in the truth of what was published, but in the public interest in publishing the matter in question". The truth of the matter is relevant to reasonableness (discussed below) but is not relevant to whether the matter is in the public interest. The ABC had to prove this element by "adducing evidence that the publisher turned the publisher's actual or attributed mind to the issue and did not hold the relevant belief" (following Turley v Unite the Union [2019] EWHC 3547). It is not enough to try to rationalise the publication after the event.

3. The defendant's belief was reasonable (s 29A(1)(b))

The defendant must also be able to prove their belief the matter was in the public interest was reasonable in all the circumstances. This is a subjective, rather than objective test of the defendant's actual belief, where evidence of the defendant's conduct can be relevant. This was the primary focus of this case, the most difficult element to prove, and, ultimately, where the ABC and its journalists' defence fell down.

While non-exhaustive, section 29A(3) sets out a list of factors to consider. These are:

• the seriousness of any defamatory imputation carried by the matter published;
• the extent to which the matter published relates to the performance of the public functions or activities of the person;
• the extent to which the matter published distinguishes between suspicions, allegations and proven facts;
• whether it was in the public interest (or, as his Honour added, necessary) in the circumstances for the matter to be published expeditiously;
• the sources of the information in the matter published and the integrity of those sources;
• if a source of the information in the matter published is a person whose identity is being kept confidential, whether there is good reason for the person’s identity to be kept confidential (including, for example, to comply with an applicable professional code or standard);
• whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person;
• the importance of freedom of expression in the discussion of issues of public interest; and
• any other steps taken to verify the information in the matter published.

Lee J also noted that an important aspect will usually be whether the defendant held an honest and reasonable belief in the truth of the matter (as distinguished from whether the matter was objectively true – reasonableness is not the same as factual accuracy).

Lee J highlighted the importance, when applying this defence, of considering "all of the circumstances of the case", and not merely treating the given factors as a checklist. While the factors listed above should always be considered, this alone will not be sufficient to prove the belief was reasonable.

Lee J also endorsed Wigney J's view in Murdoch v Private Media Pty Ltd [2022] FCA 1275 that the defence should apply to the "article, report or programme which conveyed the defamatory imputation or imputations" and not the "alleged defamatory imputation or imputations" themselves. In other words, did the respondent believe the publication of the article, report or programme as a whole was in the public interest?

Application

Lee J accepted that the matter was in the public interest (a fact not in dispute between the parties), and that the respondents subjectively believed the publication of the impugned matters was in the public interest.

The majority of his consideration turned on the reasonableness of this belief.

His Honour found the response to an FOI request relied upon by Mr Willacy in preparing the November Article confirmed that an investigation was underway but not that it could "reasonably or safely be concluded that the FOI Response confirms the investigation concerned November Platoon". He also found Mr Willacy should have taken further steps to corroborate the account of a confidential witness, "Josh". Josh did not name November Platoon or Mr Russell in the information he provided to Mr Willacy and himself admitted his memory was vague and at times unreliable (which was not revealed in the publications themselves). Lee J found "all Mr Willacy really did to attempt to test Josh's account was satisfy himself Josh was who he claimed to be". His Honour also took into account other grounds, including the seriousness of the allegations in the November Article, Mr Willacy's drafting choices in the light of the information before him, and what his Honour considered to be the lack of real urgency other than as a means to vindicate his earlier reporting. On this basis, Lee J concluded Mr Willacy could not rely on the defence of public interest because, taken as a whole, his belief that the publication was in the public interest was not reasonable in all the circumstances.

Lee J also found Mr Robertson had made several errors in his edits to the article, including firming up the language to "confirm" the investigation into November Platoon. Mr Robertson had also relied only on Mr Willacy to confirm the accuracy of the article and had failed to conduct his own verification of the facts contained within it. Further, Mr Robertson failed to alert Mr Russell to the full contents of the article when obtaining his response. As a result, his Honour ruled that Mr Robertson was also unable to rely on the defence of public interest.

His Honour also found other, more senior members at the ABC, including Mr Willacy and Mr Robertson's editor, should have raised issues with the article and insisted further enquiries were made. As such, his Honour also found the ABC's belief was not reasonable and the organisation could therefore not rely on the defence of public interest.

For these reasons, Lee J held the defence of public interest was not available to any of the three respondents and awarded Mr Russell $390,000 in damages.

What's next?

This was the first substantive application of the new public interest defence since its inception. While the ABC was unsuccessful, the decision provides useful guidance (and hope) for other publishers and journalists intending to rely on the defence. As his Honour noted, this is a potentially useful defence, this case was just not the best vehicle for it.

His Honour referred several times to the failure to distinguish between suspicions, allegations and proven facts. Journalists and editors must be careful that language used does not rise above the actual level of certainty they hold. Particular care should be taken when multiple authors are working on copy that amendments made for other reasons (e.g. succinctness) do not inadvertently blur these lines. If a source is not certain of events, the article should not imply the source was certain, and only convey that the account is based on information which has not been independently verified. Steps should be taken to corroborate information from unverified sources.

As with the previous defences, his Honour placed high importance on approaching the subject of an article and including their response in any publication. This requires giving the subject a fulsome overview of all the allegations being made in relation to them, not merely putting one or two allegations to them which are not representative of the totality of the allegations being made in the article.

Further, it is a timely reminder to all individuals involved in the publication process that they should each ensure they are comfortable that there is a basis for each of the imputations conveyed by the article. Any individual in the chain of publication can find themselves involved in defamation proceedings (and having to rely on the public interest defence), so each must satisfy themselves that publication is in the public interest.

Lee J was careful to avoid the peril the Court previously fell into with the predecessors to the public interest defence: he made particular note of the fact that the factors for consideration as to what is "reasonable" in section 29A are not an exhaustive "checklist", and succeeding on the defence does not require succeeding on every factor.

If the Courts continue to follow this approach, it provides hope for publishers of avoiding the problems encountered in relying on previous defences such as the defence of statutory qualified privilege under the previous Act, which became nearly impossible for mass media publishers to succeed on due to the high bar set by the Court for publishers to establish reasonableness.

When the drafting of the new public interest defence was released, there was concern from stakeholders that the list of non-exhaustive factors in section 29A(3) in the new defence would be ultimately adopted by the courts as a mandatory checklist of hurdles which publishers need to jump over every time the defence is pleaded. However, in his detailed assessment of the defence, Lee J warned against this approach and emphasised the need for courts to leave room to consider the nuances and specific circumstances of individual publications, acknowledging that the same steps cannot be followed for every story.

Finally, Lee J acknowledged that journalism need not be perfect in order to be availed of the defence: "errors sometimes happen, even in the work of the most distinguished journalists writing on topics of great public importance." Lee J did however note "it is important to understand there is not some sliding scale which means the greater the public interest in the matter, the greater the margin for error in what is published". Equal care must be taken, regardless of the seriousness of the potentially defamatory material. It should provide some comfort to journalists and their publishers that some minor errors should not defeat their ability to rely on the defence. However, the risk remains that, in applying the defence, courts will fall into the trap of finding that an error on the part of the media renders their belief in the public interest of their story unreasonable.

Given this is the first decision to seriously apply the defence, publishers will be keen to observe how the jurisprudence in this area evolves, particularly on the issue of when an error in the media's reporting is sufficient to render their belief unreasonable, and whether other judges heed Lee J's warnings about not falling into the "checklist" trap and instead apply a more flexible and nuanced approach to determining reasonableness. These issues will be key to determining whether the public interest suffers a similar fate to the previous statutory qualified privilege defence, or whether it is more effective in striking a balance between protecting reputation and promoting public interest journalism.

Authors: Robert Todd, Partner; Nick Perkins, Counsel; Imogen Loxton, Senior Associate; and Rebel O'Connor, Graduate.