The public interest: new defamation defence finally tested

In the first significant consideration of the newly introduced public interest defence in section 29A of the Uniform Defamation Acts by a superior Australian court, publishers have been set a high (but not insurmountable) bar to its use (Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223).

As at the date of this article, the defence has not yet been considered by any Australian appellate court, and was previously only considered in respect of a strike-out application (Murdoch v Private Media Pty Ltd [2022] FCA 1275) and aggravated damages (Barilaro v Google LLC [2022] FCA 650).

The publications by the ABC

The plaintiff, Mr Heston Russell, was a commander of “November Platoon” within the 2^nd Commando Regiment, Alpha Company, during his deployment in Afghanistan.

The second and third defendants, Mr Joshua Robertson and Mr Mark Willacy, are both journalists within the ABC’s “Investigations” team. Both had extensive investigative experience, particularly in respect of investigations into the commission of alleged war crimes by Australian soldiers during the Afghanistan War. Justice Lee described the publishers as being “justifiably proud of their earlier work”.

The defamation claim arose out of the following publications:

• The October Article: the first report by the ABC in October 2020 concerned “allegations of a US marine who said Australian commandos shot and killed an Afghan prisoner” (this article was not technically sued upon, but provided the foundation of the subsequent publications).
• The November Article: a follow up to the October Article, published a year later, stated that the Defence Department has “revealed there is an active criminal investigation into the conduct of an Australian commando platoon in Afghanistan in 2012”.
• The Linked Article: at the time the November article was published, it included links to the October Article: Mr Russell sued on the articles when read together.
• The Television Broadcast: a segment published during the ABC’s “News Hour” television programme, which was an interview of with Mr Robertson about the contents of the November Article.

The publication of the October article was precipitated by Mr Willacy being contacted by a US Marine, seemingly aware of his extensive war-reporting history. The Marine, given the pseudonym Josh, was deployed in Afghanistan in 2012. He advanced three allegations:

1. First, a second-hand account that an “Aussie” had shot an unarmed Afghan man sitting on a wall (the ‘Throwdown Allegation’).
2. Secondly, that Josh heard (but did not see) Australian soldiers shoot and kill a prisoner under control, because the prisoner would not fit in a helicopter (the ‘Helicopter Allegation’).
3. Thirdly, that Australian soldiers had killed an Afghan family, including a small child, as well as general assertions that Australian soldiers in Afghanistan had gone on a “month long rampage” and committed acts of atrocity.

Josh’s allegations were nevertheless littered with caveats. By his own admission, he was unable to provide significant specificity to accompany his allegations. During conference calls with Mr Willacy, in which the journalist sought to substantiate details of the Helicopter and Throwdown Allegations, Josh could not recall the number of prisoners present (“we’ll just say seven for the sake of explaining”), where and when the events took place (“somewhere up north” and “probably late June or early July, if I had to guess”), and did not personally see the events which took place (“it was all comms”). He repeatedly noted his “fuzzy” memory and did not overstate the extent and quality of his recollections.

Crucially, Josh was unable to identify any specific individuals within the Australian Defence Force associated with the allegation. He was only able to say that the perpetrators were within “Task Force 66” (which comprised both Alpha and Bravo companies, and over 300 people).

The problems with publication

A consistent problem for the published articles was that they placed too greater reliance on the evidence that was available. For example, the October Article stated that an anonymised US marine had asserted that commandos, specifically the 2^nd Commando Regiment, had committed the wrongdoing. But this claim was never made by Josh: the high-water mark of his assertion was that he had worked with commandos, and worked with Task Force 66, but he had been unable to identify any individual who committed the alleged wrongdoing.

A second critical issue arose in the course of verifying the allegations made by Josh: Mr Willacy sought materials from the Department of Defence, pursuant to a Freedom of Information (FOI) Request, relating to the November Platoon. In response, the Department denied access to the documents on the basis it “would, or could reasonably be expected to… prejudice the conduct of an investigation of a breach, or possible breach, of the law”.

The FOI response was the impetus for the November Article and wrongly interpreted the Department’s response as confirming that a criminal investigation was in fact underway in respect of the November Platoon. Justice Lee found that the reporting of this response as “confirming” an investigation was at best putting it too highly, or at worst was misleading.

Finally, additional steps which could have been taken, such as attempting to interview or speak with the “platoon commander”, were not taken. Despite the scarcity of specificity in Josh’s accounts, the respondents ultimately sought (and received) editorial approval to publish the articles on a “single person account” (i.e., a story not corroborated by another source). Conflicting testimony from other witnesses was not included. For example, a United States ‘DEA Agent’, Mr Hamilton, had spoken to Mr Willacy (off the record), and unlike Josh spoke positively of the Australian forces in Afghanistan generally, and of the 2^nd Commando Regiment specifically. Mr Hamilton described them as being professional, easy to work with, and that he had not experienced “heavy handedness” by them. He described Mr Russell as having a “great command presence on the ground”. Although those comments were made off the record, no subsequent attempt was taken to formally interview Mr Hamilton.

The elements of the public interest defence

The section 29A defence has three limbs to its operation:

1. First: a determination of the relevance of the publication to an “issue of public interest”.The defamatory matter must be “published in the course of or for the purposes of a discussion of the conduct or some person or institution that invites public criticism or discussions”.
2. Secondly: a focus on the character of the publication, being effectively a “value judgment as to whether the public would benefit from the subject being discussed publicly. This limb is concerned with a respondent publisher’s state of mind at the time of publication. They must prove belief that the publication of the matter was in the public interest. (ie., it is the article, report, or programme, and not the defamatory imputation, to which the defence is directed).

   Importantly, this second limb is not an objective test. The question is not whether a notional reasonable person, in the publisher’s position, could have believed the publication to be in the public interest. Rather, the publisher must adduce evidence that they turned their mind to the issue, and did actually hold the belief themselves.

3. Finally: an objective assessment of whether the respondent’s belief that the matter was in the public interest was, in all the circumstances, reasonable. (Justice Lee described this as an “open-textured and value-laden” assessment.)

In making his decision, Justice Lee took care to clarify the purpose and operation of the Public Interest defence in section 29A, which focuses on the honest and reasonable belief in the truth of a publication. This is distinguishable from the actual truth or falsity of a published allegation: public interest journalism is distinguishable from the fact-finding process expected from judicial proceedings.

His Honour also went to great pains to stress that in determining whether the defence is established, the court must take into account all of the circumstances of the case.

The first and second limb: a matter of public interest, and subjective belief

Unsurprisingly, the plaintiff conceded that the publications constituted matters of public interest. They arose out of Australia's involvement in the longest military campaign in the nation’s history, which subsequently triggered significant investigations by public bodies into allegations of grave seriousness.

The reporting into Mr Russell specifically, and the respondents’ suspicion of his wrongful conduct, was also described by his Honour as not being “some irrational fancy”. It was Mr Russell himself who voluntarily identified himself as the commander of the November Platoon, after the publication of the October Article. Further, during an interview of Mr Russell on the Channel 10 programme “The Project”, Mr Russell was pointedly asked to confirm that he had never seen a prisoner be “summarily executed” to which he gave an answer that Justice Lee described as “oddly non-responsive”.

Likewise, Justice Lee accepted that the journalists and editors involved in the drafting and publication of the articles earnestly would have believed the publications to be in the public interest. The court accepted that the journalists did not “set out” to convey anything they believed to be wrong.

The third limb: objective reasonableness

It was the third limb of the defence that caused the defendants to falter, as Justice Lee found that the publishers’ belief in the public importance of the publications was not, in all the circumstances reasonable, with focus directed to the conduct of the publishers in reporting the stories.

The Court accepted and was sympathetic to the fact that, given the nature of the subject matter being reported upon, witnesses may not be prepared to speak on the record, FOI requests would be rejected, and the results of some government inquiries would not be made available to the public, thereby necessitating “reading between the lines” in the course of reporting. This, the court expressed, must necessarily inform what constitutes “reasonable in all the circumstances”. However, in this instance the publishers had done three things.

First, they had failed to carefully distinguish in their own reporting between what was known, and what was suspected. In doing so, they inadequately distinguished between suspicions, allegations, and proven facts.

Secondly, despite the caveats associated with Josh’s allegations, they had failed to take any real effort to verify the allegations with other military sources. No effort was made to speak to any commandos deployed in Afghanistan in 2012, any soldiers in Task Force 66, or any other American soldiers. This was despite Josh frankly and clearly articulating to the ABC, at the earliest opportunity, the deficiencies in his recollection. Justice Lee considered that “a journalist acting reasonably would have done more to explore sources of potential corroboration”.

Finally, they failed to properly put the substance of the November Article to Mr Russell or publish what responses they did receive from him. At one point, an editor of the ABC Investigations team initially approved, and then rescinded, the inclusion of a quotation from Mr Russell where he stated that he was “looking forward” to the ABC conducting an internal review and “an apology being issued”. The basis for the refusal to include the quote was that Mr Russell already had a “huge platform” which they did not want to amplify. His Honour found that this could hardly constitute a “reasonable attempt” to obtain and publish a response from a person:

"Depriving Mr Russell of a properly informed opportunity to respond…meant [the Respondent] did not procure all the information he could reasonably obtain to assess whether what he proposed to publish, serious as it was, was sufficiently accurate."

These specific issues were in addition to the perceived urgency by the ABC to publish the November Article. The urgency, his Honour found, was not due to a need to release the information to the public as soon as possible but was fuelled by a "commercial and vindicatory" desire to prove their critics wrong and to justify their earlier reporting.

Damages and credit

Mr Russell was ultimately awarded damages of $390,000 with interest (this has since been followed by consent orders for costs, including indemnity costs).

In considering damages, Justice Lee raised some significant factors undermining Mr Russell's reliability as a witness arising from his evidence. In particular, during cross-examination, it was identified that Mr Russell had provided a fake invoice, altered by Mr Russell through an "elaborate process of manipulation" and he had attempted to mislead the court during the giving of his evidence about that. Justice Lee stated that the explanation given by Mr Russell as to the discrepancies in the invoice was obviously an "explanation Mr Russell made up in the witness box". He ultimately concluded that Mr Russell was not an impressive witness, was regularly non-responsive, unwilling to make concessions, and that it was unsafe to place any reliance upon his evidence.

The respondents sought to rely upon these adverse credit findings to reduce the damages payable to Mr Russell. Justice Lee ultimately declined to do so, as he did not accept that his misgivings as to Mr Russell's credit should alter the general damages payable. In respect of aggravated damages, he determined that the conduct of the plaintiff must be "put to one side", and focus be directed to the respondents conduct to determine whether aggravated damages were payable.