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Ben Roberts-Smith and disproving defamation with truth

Three media outlets successfully defended their claims using the defences of substantial truth and contextual truth.

Federal Court judge Anthony Besanko has dismissed all of the war veteran Ben Roberts-Smith’s defamation claims against the Sydney Morning Herald, The Age, and the Canberra Times, ruling that the defendants have successfully defended their publication of articles about alleged war crimes, domestic violence, and other misconduct.

The former SAS soldier had claimed that a series of publications that exposed the allegations had seriously damaged his reputation.

However, Justice Besanko found that the allegations that Roberts-Smith was involved in the murder of four unarmed Afghans, including one disabled civilian whose prosthetic leg was taken as a war trophy and was used to drink alcohol from, were ‘substantially true.’

While Justice Besanko did not find that the defence of substantial truth was made out in relation to allegations of his involvement in the killing of an Afghan teenager and domestic violence against an unnamed woman, known to the court as ‘Person 17,’ he nonetheless also dismissed the defamation claims on these matters as well.

The defendants relied upon the defences of substantial truth, also known as ‘justification,’ and contextual truth, located in Sections 25 and 26 of the Defamation Act 2005 (NSW), respectively.

The defence of substantial truth is pretty straightforward. If the defendants can prove that a claim, also known as an ‘imputation,’ is true, then it cannot be defamatory, because any harm is does to the plaintiff’s reputation is wholly justified.

When it comes to proving a claim, the standard of proof in a defamation case is not ‘beyond all reasonable doubt.’ That only applies in criminal cases. If this case was about the war crimes themselves, then it would be a criminal case, and that would be the standard of proof necessary to convict Roberts-Smith.

However, in a civil case like this one, the normal standard is merely ‘on the balance of probabilities.’ The judge must decide whether or not it is more likely that the claims about war crimes were substantially true. The judge must be ‘reasonably satisfied’ that the imputations were not defamatory

It’s also worth noting that the Briginshaw principle, unsurprisingly developed in the High Court case Briginshaw v Briginshaw (1938), raised this general standard in extreme cases. According to Justice Dixon, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question” of whether the standard of proof has been reached.”

While it won’t be clear whether Justice Besanko thought that this case was serious enough to raise the standard of proof to prove the allegations of war crimes were substantially true until his full judgment is released, it is certainly a possibility.

The defence of contextual truth is somewhat more complicated.

According to Justice of Appeal McColl in Besser v Kermode (2011), another case involving Fairfax Media, contextual truth arose as part of a shift away from considering each defamatory imputation separately to considering the defamatory matter as a whole.

Whereas the defence of substantial truth is about defending each defamatory claim, contextual truth is about defending the defamatory claims in the context of the entire article in question. For more on the different parts of defamation, check out here.

Where an article contains multiple imputations, and some of those are true, and the other claims in the article aren’t true, but they don’t lower the reputation of the Roberts-Smith any further than the true imputations do, then those other claims are protected by this defence.

The imputations relating to Roberts-Smith’s involvement in the death of the Afghan teenager and domestic violence were successfully defended by the contextual truth defence.

The likely basis for this argument is that truthful claims about multiple war crimes are so detrimental to the reputation of Roberts-Smith that irreparable damage was already done, and it wouldn’t matter whether or not the other claims were included because his reputation had already been lowered so much.

The summary of Justice Besanko's reasons can be found here on the Federal Court’s website, but the Commonwealth government’s national security concerns mean that the full reasons may not be made available until June 5th.

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Besser v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174.

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.


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