The ABC’s Media Watch has successfully defended itself against accusations it defamed award-winning former Fairfax investigative journo Natalie O’Brien in a 2013 segment that strongly criticised two Sun-Herald reports in which O’Brien wrote that dangerous levels of hazardous substances had been found in Botany Bay.

O’Brien’s original story was based on Environment Protection Authority testing of 15 sites in Botany Bay after receiving a tip-off from a member of the public. The EPA had said in a press release that the results were “well below the national health inspection records”. O’Brien’s July 2013 story said the EPA had been accused of “covering up the discovery of some of the most poisonous substances on earth at levels well above health limits”.

Media Watch Paul Barry tore this down, saying that the facts on safe levels contained in O’Brien’s story were “just wrong” and citing numerous experts to make the case. He also criticised the use of a picture of a playground to illustrate the articles, as the playground was not one of the areas tested by the Environmental Protection Authority report that formed the basis of the story.

O’Brien said the segment had accused her of “trickery”, said she had created “unnecessary concern in the community”, and that she had acted “irresponsibly as a journalist by failing to consult experts”.

A NSW Supreme Court judgement released today found that while Barry’s statements did pose defamatory imputations, the ABC could rely on grounds of fair comment, honest opinion, truth and contextual truth. However, the final outcome rested only on the defences of fair comment and honest opinion, after which there was no need for the ABC to rely on the other defences.

The decisive victory allows the ABC to pursue costs against O’Brien; ABC director of legal and business affairs Rob Simpson told Crikey it intends to do so. Asked for details about the ABC’s previous settlement offer to O’Brien — which, Crikey understands, was made some months ago and would have had O’Brien emerge with a monetary sum — Simpson said any settlement discussions or correspondence were confidential.

Aunty’s pleading of a truth defence meant that while it was the ABC on trial, Justice Lucy McCallum of the NSW Supreme Court spent a lot of time closely examining the factual basis of the claims in O’Brien’s stories. Her findings were damning, saying O’Brien irresponsibly relied on an expert involved in a company selling a commercial testing service to explain the significance of the findings, and this individual was not qualified to interpret results. Another expert in O’Brien’s story had a PhD in law and was similarly unqualified to interpret the complex reports. In failing to rely on appropriate experts, McCallum wrote:

“[O’Brien] lent her good reputation as a journalist to an uninformed or misconceived interpretation of an important report. The article made serious and alarming allegations. On my assessment of the evidence, had Ms O’Brien consulted an expert in the field of site contamination assessment who was truly independent (in place of her uncritical acceptance of the opinions of a man who had a vested interest in whipping up community support for further testing), I think she would have been dissuaded from making those allegations. In the circumstances, I am persuaded to the unhappy conclusion that her failure to consult experts was irresponsible. ”

“It is my impression that Ms O’Brien did not herself analyse or have any real understanding of the EPA report or the regulatory regime … Importantly, I doubt whether Ms O’Brien had any appreciation of the limited significance of the EPA’s findings. She simply accepted, uncritically, the alarmist interpretation put on them by Mr Helps and Mr Brown, who she knew were actively pursuing a lucrative contract to undertake further testing.”

“For those reasons, I am not persuaded that the misrepresentation made by the article concerning the site of the tests was deliberate or mischievous on Ms O’Brien’s part. Rather, it appears to have been due to a combination of inattention to important detail and exuberance for a good story.”

Another part of the ABC’s defence relied on fair comment, which McCallum accepted:

“The matter complained of provides a textbook illustration of the operation of the defence of fair comment. The structure of the programme is to present, factually, something that was reported in the media; to present, factually, what is said to be wrong with it and to pass comment on the appropriateness of the relevant conduct by reference to a normative standard for the media. The programme makes several comments as to what The Sun-Herald ‘should’ have done or ‘should’ do. The tone of the programme is the tone of critique. With great respect to Mr Barry, his manner of presentation is, dare I say, opinionated. I am satisfied that the ordinary reasonable viewer (and reader) would have understood his remarks, in their defamatory meaning, as his comment or opinion, not fact.”

Barry told Crikey today that he was happy the three-year saga was over. “I was always pretty confident, but you never know with a court case. It’s great to have it over and great to have won. And I’m particularly pleased the judge agreed with our analysis.”

Media Watch cops flak from journalists, whose professionalism it makes a habit of critiquing. But it’s rare for the program to be sued, Barry says. He could think of only one other case while he’d been presenter, which had resulted in a settlement. “Journalists get very thin-skinned, but they don’t often sue,” he said. “It’s also more difficult to sue a comment program.”

O’Brien is no longer employed at the Sun-Herald, though she has recently freelanced for the title.