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Chris Merritt
Legal Affairs Contributor
17 February, 2023
Australian Financial Review defamation loss a case study for law and journalism schools

On February 7 The Australian Financial Review lost a defamation case. Some saw it as an attack on journalism.

This seems to be how it was viewed by Michael Stutchbury, the newspaper’s editor-in-chief. He said the loss “highlights how Australia’s defamation laws pose a significant threat to public interest journalism. The AFR stands by its journalists.”

If Stutchbury is right, much more is at stake in this case than the $545,000 the Financial Review has been ordered to pay to the man it defamed: Papua New Guinea politician William Duma.

Stutchbury is one of the nation’s most experienced editors. In another life, I worked with him and for him for decades. He is a great newspaperman and might well have a point about the nature of defamation law.

But with the greatest respect, he is utterly wrong to use that to obscure the journalistic failures that caused his newspaper’s defeat in the Duma case.

The judgment in this case should be studied in journalism and law schools. It is the perfect example of how not to conduct public interest journalism.

There is nothing to be gained by complaining that judges, not journalists, determine what imputations are conveyed by defamatory articles. That has always been beyond the control of the media.

But the media has complete control over something more decisive: its own procedures.

When it comes to public interest journalism that means getting your facts right, getting the other side of the story, conducting yourself fairly and correcting errors promptly.

In the Duma case, none of those things happened at the Financial Review. That is why they lost. The newspaper did not seek to defend the truth of what it had published, choosing instead the defence of statutory qualified privilege which depended on proving that it had conducted itself reasonably.
That failed because, according to the Federal Court’s Justice Anna Katzmann, the reporters concerned did not take proper steps to verify the accuracy of the material upon which they relied, and while they sought comment from Duma about some things they intended to publish “they initially misled him and did not fairly publish the substance of his responses”.

These failings matter because public interest journalism is vital to free societies. It is the institutional version of freedom of expression.

And according to the late Tom Bingham, a former Lord Chief Justice of England and Wales, freedom of expression is one of the human rights that gives meaning to the rule of law in the modern world.

What Bingham meant by freedom of expression is in line with what John Milton meant in 1644: society benefits when truth and falsehood are pitted against each other.

“Who ever knew truth put to the worse in a free and open encounter?” wrote Milton in his Areopagitica.

But such a contest of ideas is worthless if it is based on a flawed understanding of the facts.

In her judgment, Katzmann goes into excruciating detail about the journalistic methods of two AFR reporters, Angus Grigg and Jemima Whyte, who received leaked documents from confidential sources and wrote a series of articles about Duma and corruption in 2020.

Grigg, the main author, contacted Duma before publication but Katzmann found Grigg’s emails had been misleading in important respects and the reporters “never invited him to respond to the allegations they intended to publish”.

The judge considered it “improper, unjustifiable and lacking in bona fides” not to correct errors in the articles when they had been pointed out.

Within hours of publication, Duma emailed Grigg pointing out that he had been cleared of allegations over the relocation of a naval base that had been reported by the AFR as a “corruption scandal”.

“Even then, the correspondents did not publish the facts,” the judgment says. “In cross-examination, Mr Grigg admitted that he ignored them. He also admitted he should have included them.”

The judgment shows that Whyte considered a correction should have been made about the naval base. She had told Grigg she believed they should change what had been published but was unable to recall his reply.

She conceded it was not reasonable to leave those errors uncorrected and to repeat them in subsequent publications.

Grigg, who now works for Four Corners at the ABC, “was a surprisingly poor witness”, the judgment says. He was “evasive” and “frequently avoided giving direct answers to simple questions. Some aspects of his evidence were incredible.”

Katzmann found Whyte was a better witness but some of her answers “strained credibility”.

Because their articles contained “extremely serious defamatory imputations”, the judge believed they should have taken particular care to ensure the facts were fairly and accurately reported.

“The evidence disclosed they did no such thing,” the judgment says. “In several instances, and contrary to what was pleaded in the defence, the journalists testified that they did not believe that what they had written in the matters complained of was true.

“In some instances, one or both of them conceded that statements they had made in the articles were not true,” the judgment says.

It lists 11 “false reports” in their coverage, including a report about a leaked email chain.

“It is presently unnecessary to decide whether the misrepresentations of the contents of the Greenburg email chain were dishonest and a deliberate twisting of their author’s words to suit the narrative Mr Grigg wished to construct.

“It is enough for present purposes to observe that he was at least careless about, if not indifferent, to the truth,” the judgment says.