Australia: Truth Defense Succeeds in 'Defamation Trial of the Century'

Published on Jul 23, 2023

Nine newspapers’ victory in the Ben Roberts Smith vs Nine defamation case strengthens a core principle of journalism, and key tenant of democracy, which is the public’s right to know. It also validates Nine’s significant investment in quality investigative journalism and the company’s support of their journalists under the most extreme pressure.

The case centred around Nine newspapers’ reporting that former SAS soldier, Ben Roberts Smith, murdered unarmed civilians in Afghanistan.

MinterEllison acting as defence lawyers for Nine argued the truth defence, whereby the onus is on the defendant, in this case Nine, to prove that the alleged defamatory material is substantially true. Justice Anthony Besanko found that Nine established substantial or contextual truth of all allegations.

MinterEllison partner, Peter Bartlett, who led the defence team in the action, said the result was a validation of the truth defence: “We approached this case using the truth defence because we believed this was the best defence. Today is the validation of the truth defence.

Never has Australia seen a media defendant face such challenges from a plaintiff and his funders. This is an enormous and epic win for freedom of speech and the right for the public to know,” he added.

The reputational stakes are always high in defamation trials but in the Ben Roberts-Smith v Nine case, a loss for Nine would have resulted in a considerable award of damages and a substantial order for costs and, according to Bartlett, “a major change in the way lawyers give media companies advice.

The decision vindicates the decisions taken by Nine despite the costs of defending the case and the resources of Ben Roberts-Smith’s team,” said Bartlett.

The year-long defamation action has lived up to its reputation as one of the largest defamation cases in the world.

I feel proud to have worked on such a significant case with a tremendously talented team,” said Bartlett.