Ben Roberts-Smith was once held up as the modern manifestation of Australia’s ANZAC legend; Victoria Cross recipient, 2013 Australian Father of the Year, Chair of the National Australia Day Council from 2014 – 2017 and more.
Nonetheless, cracks began to form in the halo that crowned Roberts-Smith when The Age, The Sydney Morning Herald and The Canberra Times published a series of articles in 2018 that alleged accounts of war crimes, including the murder of innocent civilians and the commanding of subordinates to shoot and kill civilians.
Roberts-Smith sued the newspapers for defamation, stating that the articles depicted him as a criminal ‘who broke the moral and legal rules of military engagement’ and disgraced the nation and its armed forces. The newspapers defended their claims, stating that the allegations were true. Thus began the lengthy legal battle that saw over 100 days of evidence and spanned over a year.
2 June 2023 marked the day the halo officially shattered as Justice Anthony Besanko of the Federal Court of Australia gave judgment in favour of the newspapers. His Honour held that the newspapers were able to establish ‘substantial truth’ in relation to the allegations that Roberts-Smith was involved in the killing of unarmed Afghan civilians and ‘contextual truth’ in relation to the domestic violence allegations against him.
The onus of proof in the defamation case fell on the newspapers, who needed to prove ‘on the balance of probabilities’ that their published allegations were true.
To be successful, the crucial elements to establish a valid cause of action for defamation first needed to be met.
The Elements of Defamation
The 3 key elements for defamation are as follows:
1. Publication of Information
The information must be published to at least one other person other than the person who is suing for defamation. Publication refers to any form of communication, including written, verbal and pictorial.
It is crucial to prove that the publication was intended to reach the public in a manner than was accessible and shared. This includes posts on media and social media sites for the friends, family and/or the public to see.
This is contrasted to someone writing something damaging in a private journal that is not intended to be shared with anyone, and therefore cannot be considered defamatory.
2. Identification
Another crucial element is the identification of the person against whom the imputations (claims) are being made. This can be done by direct reference to their name, or indirectly, by reference to their standing in society, position in an organisation or any other factor that distinctly identifies them.
It is insufficient to refer to a group, such as ‘soldiers in the army; the information must distinctly identify the individual so that it is reasonably clear who is being referred to.
3. Damage to Reputation
To qualify as defamation, the publication must negatively affect how the person is perceived in public – that is, the imputation (claim) in the publication is damaging and likely to cause the ordinary reasonable person to think less of the allegedly defamed person.
Consequences
Statements that are damaging to an individual’s reputation may result in the individual losing their job or opportunities for progression, or face difficulties securing employment. Business owners may experience a spike in negative reviews and a decline in clientele.
These individuals may also face harassment, either physical or via media and social media. Additionally, if they hold a standing in society, there may be calls for them to be stripped of any title or honour bestowed upon them.
Outcome of the Roberts-Smith Defamation Case
The case of Roberts-Smith is an interesting one in that it was Roberts-Smith who brought the case of defamation against the newspapers in the attempt to preserve his reputation as Australia’s most decorated soldier.
Nonetheless, once proceedings began and evidence brought truth to light, it was a downward spiral with no way out. The defamation judgment against Roberts-Smith saw him having to resign from his role as senior Queensland executive for Channel Seven. Not only that, the defamation judgment against Roberts-Smith completely shattered his heroic image – with calls for the militia man to be stripped of his Victoria Cross, the highest military honour awarded to individuals who, ‘in the presence of the enemy, display the most conspicuous gallantry; a daring or pre-eminent act of valour or self-sacrifice; or extreme devotion to duty’, thus proving that defamation cases may not always result in favourable outcomes for the one who brings the claim to Court.
If you or someone you know is seeking legal advice, you may wish to speak to one of our expert civil and commercial lawyers today. Please call us to arrange an initial consultation on (02) 8080 7585.
