The case marks the first test of the new public interest defence in defamation law, introduced in most states and territories in July 2021.
The ABC will be ordered to pay $390,000 to former special forces soldier Heston Russell after the Federal Court ruled the broadcaster could not rely on a new public interest defence for defamatory reports suggesting he was involved in killing an Afghan prisoner.
Russell’s barrister, Sue Chrysanthou, SC, indicated her client would seek indemnity costs from the ABC, which would cover a higher proportion of his total costs bill than a standard costs order, on the basis that he had offered to settle the case if he received “judgment in the sum of $99,000, and removal of the article and costs”.The offer was made on September 12 last year, Chrysanthou said, “shortly after commencement of the proceedings”.
The ABC sought to rely on the public interest defence in the case, which requires a publisher to show the matter concerns an issue of public interest and it “reasonably believed that the publication of the matter was in the public interest”. The reasonableness of the ABC’s belief was the key issue in the trial.
He said the article published in November 2021 “overstated the cogency of the evidence” and was published following missteps.
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