Peter Bartlett is one of Australia's leading Media and Communications law experts. He is ranked "Star Individual" in the TMT Media category by Chambers Global, the only Australian to receive the top ranking. He has practised law for 50 years. He has chaired and served on many government and media boards, including Melbourne Sports and Aquatic Centre Trust, State Sports Centres Trust and Melbourne Recital Centre Board. He is currently the Immediate Past Chair and Board Member of the International Bar Association (IBA), Legal Practice Division and a former Chair of MinterEllison.
The Ben Roberts Smith v Nine judgement, while overwhelmingly favouring your client, Nine, surprised many. Can you tell us why?
The judgement may have surprised many because when Ben Roberts-Smith first issued proceedings, he was Australia's most decorated war hero still living. He'd been Father of the Year. There had been many photographs of him meeting the Queen, the Governor General, and Prime Ministers. He was the public face of the Defence Department.
When he issued proceedings, he was confident that many SAS soldiers would not get in the witness box to give evidence against him. But those who read the media and the court reports from the 110-day trial, day after day, would have read a lot of very negative publicity. There were new revelations almost daily. Many people would have seen that damaging material, but they probably also realised that defamation laws in Australia are very pro-plaintiff.
The SAS soldiers would have recognised that Kerry Stokes was funding Ben Roberts-Smith and that they were throwing unlimited resources at us. They would have seen the PR machine for Roberts-Smith being very active. Many articles were attacking the Sydney Morning Herald, The Age and the Canberra Times, and journalists Nick Mackenzie and Chris Masters. They probably wouldn't have been surprised if the decision went either way. But the reality is Justice Besanko, who sat there for 110 days, saw all of the witnesses in the witness box, took a view on the credibility of each witness, and came out with a really comprehensive decision in our favour.
You used the truth defence to defend the action. What were the other options open to you, and why did you favour the truth defence over a different approach?
There are several defences available to the media in defamation cases. The reality is there is really only one meaningful defence, and that's plead truth to prove truth. Other defences include contextual truth, qualified privilege, and honest opinion. While these sorts of defences might read quite well when you look at them in the Defamation Act, they've been read down by the judiciary. And so it's very difficult for the media to succeed in those defences.
When we faced the Ben Roberts-Smith action, we had unlimited resources thrown at us. We realised we needed to influence these SAS soldiers to get in the witness box. We were assisted by COVID, which meant that the trial was delayed for 12 months. And we were able to use that time to talk to the SAS soldiers, talk to their lawyers, and try to influence them to get into the witness box.
I think the icing on the cake was then to influence Emma Roberts (Roberts-Smith's ex-wife), who was initially listed to give evidence for him but decided, after I'd spoken to her lawyers several times, to provide evidence for us. And then his private investigator gave evidence to us. Roberts-Smith would never have expected that, but that enabled us to put a lot of evidence before the judge, which justified our truth defence.
Will this case increase the probability that the truth defence is used more frequently, and how will it affect the way defamation actions are fought in Australia?
It is tough for the media to win a defamation case, and we've seen that time and time again. I think many defamation lawyers acting for the media will be looking very closely at the decision in the Ben Roberts-Smith case. They'll be looking at the strength of the evidence we presented, the amount of work we did in research and putting together all of the documents and other material before the Court. And they will see it's possible to do the same in their particular case. Then, the best way for them to proceed is on a truth defence.
One of the interesting aspects of the decision in the Ben Roberts-Smith/Nine case is that many people have issued proceedings for defamation in the past, rich and powerful or people with huge egos who have assumed that the media would settle on a commercial basis rather than proceed to trial. I think the Ben Roberts Smith v Nine case shows that, on occasion, the media will decide to stand up and support their journalists and mastheads and fight. And that has to be a warning for potential plaintiffs in the future. Defamation cases really are a lottery. You can't anticipate what will happen, and it could be the worst mistake they ever make.
Clearly, the litigation is very expensive; it is in open court and will get much media coverage. The defamation case could cause far more damage to their reputation than the original publication.
I think the action by Nine in supporting its journalists in supporting their mastheads and fighting that case and producing the witnesses and pleading the truth defence will be a warning to those potential plaintiffs who are looking at suing to say, 'Is it really in my interest to go ahead and issue these proceedings? Maybe it's a bit of a lottery. I don't think they can get the evidence into Court to defeat me, but if they can, that will harm my position and destroy my reputation.'
How much does the cost of a defamation action influence the decision to proceed?
I sometimes wonder what would have happened in the Ben Roberts Smith case if Fairfax had still owned the mastheads. The rivers of gold from classified advertising have disappeared, and the media companies don’t have the huge profits they had many years ago. But we were very lucky that Nine took over just as the Ben Roberts Smith case was starting, and the Chair, the Board, the General Counsel, the senior executives, the in-house lawyers, the reporters – everyone was fully supportive of defending the case, but it was very expensive. It cost nine, something like $12-15 million, and I sometimes wonder whether Fairfax Media could have afforded that.
You and MinterEllison have long advocated for changes in defamation law. In fact, you once described defamation law as a 'Frankenstein's monster' of 'countless complications and piecemeal reforms. What reforms would you like to see in the future?
Well, the tragedy in this country is, firstly, that the defamation laws really are pro-plaintiff. Secondly, it is such an expensive exercise.
We got reforms to the Defamation Act on July 1, 2021 but one of those reforms is simply not working. It means that with a Letter of Demand, which under the defamation regime is called a Concerns Notice, you have to set out the claims or imputations alleged to come from the publication. Then, you need to set those out in the Statement of Claim in similar terms. The problem is that even experienced defamation solicitors are now getting their letters of demand settled by King's Council and Senior Counsel, and that's very expensive. I recently settled one on the basis of one letter of demand Concerns Notice, and then I received a bill from the plaintiff's solicitor for $25,000. Now, $25,000 for one letter is outrageous. And obviously I didn't pay it, but it shows just how expensive it is.
The other problem is that we don't have a regime that encourages quick settlements. We need a regime where the person troubled by the publication can contact the publisher and resolve their disputes cheaply and quickly. The Defamation Act does not encourage that. That's a major reform we need to look at.
All the mainstream media have in-house lawyers who receive the letters of demand, but there should be a better way to communicate with those in-house lawyers and try to resolve the dispute long before it gets to litigation.
The added problem with the 2021 reforms is that Western Australia and the Northern Territory still need to implement them. The result is that we do not have uniformity and have seen forum shopping. New reforms are now being debated. They will probably result in a further move away from uniformity.
Are there any overseas jurisdictions that exemplify best practices in managing defamation cases?
Different regimes cover the defamation field in every country in the world. Many years ago, the United Kingdom was considered to be very pro-plaintiff. But it had several changes to its defamation laws, and now Sydney is regarded as the defamation capital of the world, which is extraordinary. So, a country like Australia has more defamation actions. Sydney has far more defamation actions than the United Kingdom. That tells us a story that shows a message that there is something wrong with our defamation laws and how our Judiciary interprets them. The other extreme is the United States, where the defamation laws are more pro-media and probably go too far in that direction. We need reforms to bring us into the middle rather than the position we're presently in, which is far too favourable to plaintiffs.
What is the one piece of advice that you have for anyone trying to navigate issues of reputation management and defamation in Australia?
Personal reputation is so important. A corporation, for example, may build its reputation over 20 or 30 years, but it can be tarnished overnight with social media and mainstream media. All corporations certainly should have crisis management plans so that if there is an issue, it can be addressed very quickly. If it's a major issue, there must be a spokesperson, and that spokesperson should be the CEO, depending on the importance. That person should be out there explaining what's happening.
In this environment, there's been a huge change in reputational risk because of social media. So these days, with Twitter, Facebook, etc, a lot of damage can be done to individuals and companies. A lot of that damage can be done by someone anonymous. And it's very hard to respond to that sort of material. Do you respond, or do you ignore it? Or do you get your PR machine active and respond to that? It's another example that we need a better system where you can identify who's posting those anonymous defamatory materials and try to take that material down or take action against those individuals.
To individuals, I would say do not sue for defamation unless you really have no choice. The area is very expensive. The result of the litigation is often a lottery. The lawyers do well, but it is rare to find a happy plaintiff or defendant at the end of the litigation.