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Newspapers win defamation case brought by Australian soldier

Ben Roberts-Smith sued after the media outlets linked the soldier to alleged war crimes in Afghanistan.

Ben Roberts-Smith sued after the media outlets linked the soldier to alleged war crimes in Afghanistan.

Several media outlets in Australia successfully challenged a defamation case brought by a retired Army soldier who was linked to alleged war crimes.

The case was brought after three newspapers — the Sydney Morning Herald, the Age and the Canberra Times — published a series of articles in 2018 that detailed allegations of war crimes committed by Ben Roberts-Smith and other members of the Australian Army during their tours of duty in Afghanistan.

The allegations included a claim that Roberts-Smith and another soldier gunned down an Afghan teenager in 2006, even though other members of their military patrol had earlier determined the youth posed no danger. Other reports detailed the killing of civilians by Roberts-Smith and other military servicemembers during various deployments to Afghanistan between 2009 and 2012.

Prior to the reports, Roberts-Smith had received the Victoria Cross, the highest award bestowed upon an Australian military service member. The allegations of war crimes shook the public, who viewed Roberts-Smith as a decorated military hero.

The reports angered Roberts-Smith, who has long denied any involvement in war crimes. He quickly sued the parent company of the Sydney Morning Herald, Nine Entertainment, as well as the owners of the two other newspapers that had publish similar allegations of moral and legal crimes of battle.

The case dragged on for three years, delayed in part due to the coronavirus health pandemic that caused courtrooms to shut down and brought legal proceedings to a halt. It wrapped last June after more than 110 days of testimony that saw over 40 witnesses take the stand.

During the trial, it was revealed that the defamation case was being bankrolled by Seven Network, a television network that competes with Nine Entertainment, through a substantial loan. Roberts-Smith served as an employee of Seven Network after leaving the military.

The case was being closely watched by journalists and their organizations in Australia, who warned that a decision in favor of Roberts-Smith could have far-reaching consequences on press freedom in the country. Unlike the United States, where defamation cases are harder for public figures to prove, Australia does not differentiate between a public figure and a private citizen in those lawsuits.

Critics of the lawsuit said Roberts-Smith was seeking to suppress the rights of news organizations to produce accountable journalism, and was leveraging on his public image as a decorated war veteran to win public support in his case. Supporters of the case said Roberts-Smith was unjustifiably defamed in a series of news articles that provided no specific evidence pointing him to anything illegal during his time in Afghanistan, and that the allegations made in the reports were different from what really happened there.

On Tuesday, an Australian judge sided against Roberts-Smith, saying certain allegations against him were proven to be true. Those allegations included a claim that Roberts-Smith executed an elderly man while on patrol without any case, and kicked a handcuffed detainee before ordering a colleague to shoot the villager.

The judge found the newspaper couldn’t demonstrate other allegations were true, but the overall claim that Roberts-Smith was linked to war crimes had been validated by the evidence and the testimony at hand. For that reason, the judge agreed that the case should be dismissed.

The verdict was quickly cheered by media advocates as a win for accountable journalism.

“The ruling just now by Justice Anthony Bresanko in the Ben Roberts-Smith defamation case is a big and important win for journalism and press freedom in Australia,” Karen Percy, a former senior reporter for the ABC Network who now works with the Media Entertainment and Arts Alliance, said in a statement. “It upholds the media’s important role in undertaking public interest investigations & in the public’s right to know.”

Percy criticized Australia’s defamation laws as “awful,” and noted that they invite litigation that is expensive to defend against, as was the case here.

“We’ve seen some reform, but drawn-out, expensive, stressful court cases like this one don’t help anybody — we need true commitment to press freedom in Oz,” she affirmed.

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About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 11 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
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