Ben Roberts-Smith faces defamation case setback, losing bid to access documents containing journos’ sources
Former Special Air Services soldier Ben Roberts-Smith will not be able to force Nine newspaper journalists to hand over almost 50 documents they say could reveal their sources.
The judgment, handed down yesterday in the Federal Court, is the latest update in the Victoria Cross recipient’s defamation case against The Sydney Morning Herald and The Age, which hinges on a series of 2018 articles by Walkley Award-winning journalists Nick McKenzie and Chris Masters claiming he committed war crimes while deployed overseas.
Roberts-Smith denies the allegations and said the stories in question were “malicious”.
He is currently general manager of Seven in Queensland, with Seven chairman Kerry Stokes thus far throwing his support behind his employee.
McKenzie called the decision a “big victory for right to know [the campaign drawing attention to press freedom] and journo source protection”.
“The Age/Sydney Morning Herald has defeated war crimes suspect Ben Roberts-Smith in the federal court. He wanted us to reveal sources. We refused. Court decision means our sources-brave soldiers-stay secret,” McKenzie wrote on Twitter.
BREAKING: Big victory for right to know and journo source protection. The Age/Sydney Morning Herald has defeated war crimes suspect Ben Roberts-Smith in the federal court. He wanted us to reveal sources. We refused. Court decision means our sources-brave soldiers-stay secret. https://t.co/rjC5MA4dkg
— Nick McKenzie (@Ageinvestigates) January 6, 2020
James Chessell, executive editor of The Sydney Morning Herald and The Age, also welcomed the decision.
“It is a strong endorsement of the right of journalists to protect their sources,” Chessell said.
“Nick McKenzie and Chris Masters are two of Australia’s leading reporters who refused to reveal their sources.
“The judge solidly rejected the application. He ordered Ben Roberts-Smith to pay costs. The decision will be cited by media in the future, resisting further attempts to identify sources.”
In November, Roberts-Smith applied to have access to 49 documents McKenzie and Masters said are privileged and could breach their duty to not reveal their sources.
While the judgment regarding the application is in favour of the mastheads, the case is ongoing. The hearing is set down to begin in June, and will be defended by the newspapers.
The Sydney Morning Herald and The Age maintain that the articles are not defamatory, but, even if they are, they can prove the allegations are true. ‘Truth’ is a complete defence in defamation proceedings.
Brittney Rigby was Mumbrella's deputy managing editor - news and analysis. She left Mumbrella in April 2021.
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Well that’s that then. Get accused of murder and no-one needs to reveal where the evidence came from if it’s a journalist reporting the details. How does that work ?
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How does that work you ask.
It works very well in countries that have Freedom of the Press.
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While this may influence his trial by media and public opinion, it’s not going to matter in the courtroom and his boss is supporting him, so his livelihood is secure.
Report away all you want Nick – does anybody really care about a dead villager half a world away? Doesn’t sound like it!
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Replace “murder” with “war-crime”, which I’m sure you’ll find is well outside the jurisdiction of any local laws. And yes, the conduct of the ADF is certainly within the sphere of public interest.
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In the hands of considered, sensible journalists who put their heads on the chopping block publishing, the importance of the preservation of sources far outweighs that of the preservation of Roberts-Smith’s ego and reputation.
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If you’re going to make a claim, you need to be able to back it up when the sh*t hits the fan, like the comment above – otherwise you can just make any unsubstantiated claims and then not have to disclose your source (potentially no source, or not a credible one).
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