Applying the public interest test

Nine Entertainment’s success in defending its reporting in the Sydney Morning Herald, the Age and 60 Minutes on surgeon Dr Munjed Al Muderis was astonishing. Serious allegations of failures in patient care are quintessential defamation fodder; when directed at a public figure with a background of personal and professional achievement, they almost invite litigation. But here, in a major breakthrough for publishers, Nine chalked up the first successful use of the new public interest defence.

This new defence was introduced in New South Wales and most other Australian states and territories in 2021, but in 2023 it failed at the first hurdle when the ABC tried to use it to defend its reporting on Heston Russell. In that case, Judge Michael Lee observed that this wasn’t the ideal matter on which to test the new defence. But the circumstances in Al Muderis were quite different, not least because, in addition to public interest, Nine succeeded on the defence of contextual truth. (As we saw in the same publisher’s defence against Ben Roberts-Smith, contextual truth allows a defendant to rely on the substantial truth of claims that are at least as serious as those on which the plaintiff sues.) It’s worth looking at both the Russell case and Al Muderis and asking what we now know about the new defence.   

The public interest test has three core elements. A publisher must establish that the matter concerned an issue of public interest; that they subjectively believed that publishing this material was in the public interest; and that this belief was reasonable in the circumstances. The first point is relatively easy to establish for any example of serious journalism. The recent judgments show the second element will need the journalists to give evidence and to show that they formed this belief at the time, and that they didn’t rationalise it all later. The third requirement – that it was reasonable in the circumstances to believe that publication of the matter was in the public interest – is what Justice Lee in the Russell case described as “the heart of the matter”. The relevant section in the Defamation Act (s 29A) includes a non-mandatory list of factors that can be taken into account, including aspects such as the steps taken to verify the information.

In Al Muderis, Justice Abraham said that deciding whether a journalist’s belief was reasonable involves “an assessment of that belief in the context of all the information garnered from the investigation that the journalist had”. Here, she found the journalists formed a belief that although Dr Al Muderis had experienced great success with his osseointegration surgery for amputees, the information on the public record was incomplete, with a significant cohort of patients who did not share this experience, and that it was in the public interest for the community, including prospective patients, to know about this. The fact that this belief was reasonable largely came down to the work the journalists had done in order to get to this point. And they had, indeed, interviewed a very large number of health professionals and former patients – so large, in fact, that they were able to corroborate the stories of some anonymous participants with those who were prepared to be named. Justice Abraham accepted the publishers’ statement that by the end of the investigation they had “spoken to approximately 76 sources … and reviewed thousands of pages of emails, business records and scientific papers”. Nine also explained the successes Dr Muderis had experienced as well as the perceived failings, and it conducted a lengthy interview with him and included the substance of his position in the publications.

In contrast, in the Heston Russell case, Justice Lee identified problems both in the verification of facts and in the way in which the article was presented. The reports had centred on very serious allegations concerning a platoon of Australian commandos in Afghanistan, including an incident where an Afghan prisoner had apparently been shot because there was insufficient room on a helicopter that was evacuating the soldiers and their prisoners. In effect, Justice Lee found that the ABC overstated the extent to which its main source had identified Russell’s platoon as the unit involved, as well as the extent to which the response to an FOI request confirmed the claims made by the ABC. The lead journalist didn’t follow up with sources that might have verified important claims, and while it was reasonable for another journalist to expect to rely on the existing research, he still had an individual responsibility to inform Russell of the nature of a follow-up article and obtain a proper response before publication. The ABC also ran into problems when it added ‘key points’ to its article which included a significant factual error.

These two cases, taken together, suggest that the public interest defence is not without its hazards. They show that although the new test is a long way from the treacherous ‘responsible journalism’ test of the notoriously difficult qualified privilege defence, it still involves examination of the conduct of the publisher in order to establish whether the belief about the matter being in the public interest was reasonable. The Al Muderis case (assuming the decision is upheld on appeal) shows that the legal landscape has shifted a little over the last few years, and that the new defence can succeed for public interest journalism. That said, there is perhaps a further challenge ahead: can a publisher establish public interest without also having established substantial truth or contextual truth?