The facts
On 25 February 2021 at 11.51 pm, refugee activist Shane Bazzi published a tweet on Twitter containing the words:
“Peter Dutton is a rape apologist.”
This tweet contained a link to an article published online in The Guardian Newspaper on 20 June 2019. The link in that tweet showed a large photograph of Mr Dutton, the name “The Guardian” and the following words:
“Peter Dutton says women using rape and abortion claims as ploy to ge…
Home Affairs minister says ‘some people are trying it on’ in an attempt to get to Australia from refugee centres on Nauru.”
The first of these lines comprised part of the headline to The Guardian article. The second constituted the whole of the first sentence in the article.
Dutton sued, and Bazzi denied the tweet was defamatory, and in the alternative also relied on the statutory defence of honest opinion and the common law defence of fair comment.
Relevant law
A plaintiff is said to have been defamed if a publication causes the reasonable person to think less of them: Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4.
The approach of the courts in determining whether an impugned publication did convey the defamatory meaning alleged is settled, and are established by authorities such as Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, (2009) 238 CLR 460 at [5]‑[6]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657 at [26]; Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4, (1982) 150 CLR 500 at 505‑6; Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4, (1998) 43 NSWLR 158 at 164‑5; Farquhar v Bottom [1980] 2 NSWLR 380 at 386‑7; and Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 at 69‑74.
The Court is to consider whether ordinary reasonable readers would have understood the impugned words to convey the defamatory meanings pleaded: Radio 2UE v Chesterton at [6]. As ordinary reasonable readers may vary widely in temperament, character, education, life experience and outlook, the Court selects “a mean or midpoint of temperaments and abilities” and assesses the meaning conveyed to such persons: Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325, (2018) 99 NSWLR 173, at [104].
Section 31(1)-(3) of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter was an expression of opinion of the defendant, an employee or agent of the defendant or another person rather than a statement of fact, and
(b) the opinion related to a matter of public interest, and
(c) the opinion is based on proper material.
Section 31(4) of the Defamation Act 2005 says that a defence under this section is only defeated if the opinion was not honestly held by the defendant at the time the defamatory matter was published, or if the defendant did not believe the opinion was honestly held by the person who expressed it.
Section 31(5) of the Defamation Act 2005 says that “proper material” means material that:
(a) is substantially true, or
(b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or
(c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29.
In addition, Section 31(5) of the Defamation Act 2005 provides that “An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material”.
Lord Birkett said in 1951:
“It is the right of every man to comment freely, fairly and honestly on any matter of public interest“
Ferguson J in Myerson v Smith’s Weekly Publishing Co Ltd [1923] NSWStRp 71; (1923) 24 SR(NSW) 20 at 26:
“To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things, and that his conduct was dishonourable, is a statement of fact coupled with a comment.”
Federal Court decision
Justice Richard White ruled the tweet was defamatory and it implied Mr Dutton was a person who excused rape:
“an apologist is one who speaks or writes in defence of someone or something. This meaning is consistent with the incorporation into the English language of the Latin word “apologia” to denote the formal defence or justification in speech or writing, as of a cause or doctrine. John Henry Newman’s “Apologia Pro Vita Sua” is a well‑known example of an apologia.
“While the Tweet must be read a whole, this does not mean that all the words used in it have the same significance: John Fairfax v Rivkin at [26] (McHugh J); Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3, (1979) 141 CLR 632 at 646 (Aickin J); Hockey v Fairfax at [70]‑[71]. In this respect, it is pertinent that the statement “Peter Dutton is a rape apologist” is in the opening line of the Tweet. The ordinary reasonable reader of the Tweet would have understood it to be a pithy statement of what Mr Bazzi sought to convey and as being his contribution to the “conversation”. The reader would have understood that contribution to be “new”, i.e, as an addition to the “conversation”. The ordinary reasonable reader would also have readily understood that the words under the photograph of Mr Dutton were not Mr Bazzi’s words. This would have limited the extent to which the reader would have understood the term “rape apologist” to have been coloured by those words.
Moreover, the ordinary reasonable reader would have readily understood that Mr Bazzi’s contribution was distinct from the link and the matters which comprised it. In that context, there was no reason for the ordinary reasonable reader to think that the word “apologist” was being used with other than its ordinary meaning.
Further, rather than ordinary reasonable readers understanding that the word “apologist” was used with some special meaning to be gleaned from the words in the link, they are more likely to have thought that the link would provide support for Mr Bazzi’s assessment of Mr Dutton stated in the opening line. In this respect, the pithy statement is likely to have had an effect on the ordinary reasonable reader akin to the effect of the headline to a newspaper article, i.e, as giving an indication of what would be found by following the link.”
Although White J held that Bazzi had established that his statement was an expression of opinion which related to a matter of public interest, it was not based on proper material because of the lack of a rational relationship between the tweet and the material said by Bazzi to form a basis for his opinion. In any event, White J held that such opinion was not genuinely held by Bazzi on 25 February 2021, the date of publication of the tweet. Justice Richard White found that the common law defence of honest opinion was not made out for much the same reasons as the statutory defence of honest opinion was not made out.
Conclusion
