Australia’s first test case on the public interest defence

The Federal Court has delivered the first decision regarding the new public interest defence to defamation claims1 The decision in Russell v Australian Broadcasting Corporation (No 3) [2023] FCA 1223 (Russell v ABC) is an important development in the defamation landscape.

Background – the new public interest defence

The new public interest defence was introduced to defamation legislation in each state and territory of Australia (with the exception of Northern Territory and Western Australia). The terms of each are identical and require the following:
  1. The matter must concern an issue of public interest [29A(1)(a)]; and
  2. The publisher reasonably believes the publication was in the public interest [29A(1)(b)].
There are a number of factors that the court may consider in determining whether the publisher’s belief was reasonable, including the seriousness of the defamatory imputation, the sources of the information and the importance of freedom of expression. However, a court does not need to take those matters into account if it so chooses.2

Background – Russell v ABC

Mr Russell, a former officer of the Australian Defence Force, commenced proceedings against the Australian Broadcasting Corporation (ABC) and two journalists.

Mr Russell argued that publications by the ABC connected him to alleged misconduct and war crimes in Afghanistan. The ABC raised the new public interest defence.

The Federal Court found that while the publication of the relevant matters was in the public interest, there was not an objectively reasonable belief. The public interest defence therefore failed.

What is the public interest defence really about?

His Honour in Russell v ABC has provided valuable commentary on how 29A(1)(a) and 29A(1)(b) are separate tests. At paragraph 318 of the judgment, His Honour stated:

‘Section 29A deploys the concept of “public interest” in two different senses. Subsection 29A(1)(a) focuses attention on the relevance of the public to “an issue of public interest” whereas s 29A(1)(b) requires the making of a value judgment about whether the publication was “in the public interest”.’

His Honour added that 29A(1)(a) is to be ‘objectively determined.’

As for 29A(1)(b), His Honour stated that this is a subjective enquiry, including that:

  1. It ‘focuses attention of the character of the publication’;
  2. The publisher must adduce evidence that it turned its actual or attributed mind to the issue and did hold the relevant belief. Where there are multiple publishers, each publisher needs to establish their own subjective belief;
  3. There is then a separate and objective enquiry about whether the publisher’s belief the matter was in the public interest was reasonable in all the circumstances. To establish this, one can have reference to a list in 29A(3), however that list is non-exhaustive and one should not to try require a mandatory or limited list of matters to be taken into account;
  4. The defence can become redundant if it is shown that the publisher no longer has the belief or the belief ceases to be reasonable;
  5. Reasonableness does not require the publication to be accurate. Public interest does not depend upon this.

Why did the defence fail?

In summary, ABC succeeded in establishing that:

  1. in an objective sense, the publication of the relevant matters was in the public interest; and
  2. the publishers held the subjective belief that this was in the public interest.

However, ABC failed to demonstrate that the publication of one of the articles was objectively reasonable, as the publisher did not take sufficient steps, including distinguishing between what was known and what was not known,3 interrogate and explain the integrity of the sources or accurately convey Mr Russell’s side of the story.

Conclusion and comments

The decision illustrates important practical aspects for the application of the public interest defence in practice, including the importance of contemporaneous records about the publisher’s state of mind and the fact that published matters can evolve, impacting whether the belief continues to be reasonable. We suspect the application of this defence will focus on the issue of objective reasonableness.

This is an important issue for professional indemnity and directors, officers, insurers and policyholders. Although Russell v ABC concerned journalism, Australia is seeing increased activity for defamation claims in the corporate arena, including around whistleblowing, in sporting and social clubs, and in education. With the first failure of the public interest defence, we expect to see claimants more vigorously pursue defamation claims before the issue is revisited again.

1 Defamation Act 2005 (NSW) s 29A.

2 Ibid s 29A(4).

3 His Honour also stated that the publisher did not ‘distinguish between suspicions, allegations and proven facts’.

This article may provide CPD/CLE/CIP points through your relevant industry organisation.

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.

Mark Brookes
Partner

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