Dutton v Bazzi [2021] FCA 1474 (24 November 2021)
The respondent published a tweet with a hyperlink to an article related to the applicant. The applicant alleges that four imputations were conveyed by the Tweet mainly saying that the Applicant “excuses rape”. The applicant seeks by way of relief damages, including aggravated damages, and injunctions restraining the respondent from publishing further the Tweet or the imputations it is said to convey. The respondent raises the defense of honest opinion under s 31 of the Defamation Act 2005 (NSW).
Facts:
On 25 February 2021 at 11.51 pm, the respondent (Mr Bazzi) published on Twitter a tweet (the Tweet) saying "Peter Dutton is a rape apologist." The Tweet contained a link to an article published online in The Guardian Newspaper some 20 months previously, on 20 June 2019. The link in the form of the Tweet which is the subject of this litigation comprised a large photograph of Mr Dutton, the name “The Guardian” saying "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 applicant (Mr Dutton) sues Mr Bazzi in defamation in respect of his posting of the Tweet.
Mr Bazzi had removed the Tweet when he received the demand from Mr Dutton’s solicitors on or shortly after 6 April 2021. Mr Dutton seeks by way of relief damages, including aggravated damages, and injunctions restraining Mr Bazzi from publishing further the Tweet or the imputations it is said to convey. Mr Bazzi denied that the tweet imputed that the applicant condones rape, excuses rape, condones rape of women, and excuses the rape of women. He raises the defense of honest opinion under s 31 of the Defamation Act 2005 (NSW) and its counterparts in the Uniform Defamation Acts of the States and Territories as well as the common law defence of fair comment.
Mr Dutton deposed that the Australian Federal Police (AFP) for which he had had responsibility as Minister for Home Affairs had a definite focus on the protection of women and children against sexual assault. As another indication of the seriousness with which he views sexual assaults, he said that he had directed that police with expertise in forensic investigation go to Nauru to ensure that allegations of sexual assault on those in refugee centres were being investigated properly. Mr Bazzi did not give evidence and there was little evidence of his circumstances. In one document, he is described as an “unemployed Centrelink recipient” and in another as “an unemployed refugee activist”.
Issues:
I. Whether or not the impugned statement was a statement of fact or opinion.
II. Whether or not the opinion was based on proper material.
III. Whether or not the Applicant proved the Respondent did not honestly hold the opinion in the publication pursuant to s 31(4) of the Defamation Act.
Applicable law:
Evidence Act 1995 (Cth) s 140(2) - provides that w
ithout limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Uniform Defamation Acts s 31 - 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 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.
Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 - established that the approach of the courts in determining whether an impugned publication did convey the defamatory meaning alleged is settled, and there was little difference between the parties as to the applicable principles.
Associated Newspapers Ltd v Dingle [1964] AC 371 - relied upon in holding that the publications of Senator Waters cannot be used in mitigation.
Barrow v Bolt [2013] VSC 226 - provides that an applicant’s knowledge of the falsity of the imputations is generally a matter of which account is taken in the assessment of the compensatory damages.
Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 - Dawson, McHugh and Gummow JJ said that in this context “a subject of public interest mean[s] the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially [invite] public criticism or discussion”.
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 - where the character of the Tweet is to be assessed objectively, by enquiring whether the ordinary reasonable person would have understood the statement to be an expression of opinion.
Bolten v Stoltenberg [2018] NSWSC 1518 - held that “injunctive relief should only be granted [when] there is a real risk that the defendant will repeat the imputations found by the court to be defamatory of the plaintiff and indefensible”.
Bristow v Adams [2012] NSWCA 166 - where damage to reputation need not be proved as it is presumed.
Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 - McCallum J, at [118]‑[120], said that there “may be some force” in the plaintiff’s submission that the opinion be based on facts with a sufficient relationship to the opinion expressed, i.e, be capable of being rationally based on the identified proper material.
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 - provides that the award of damages for a defamation serves three purposes: consolation for personal distress and hurt; reparation for damage to the applicant’s reputation (including if relevant the applicant’s business reputation); and vindication of reputation.
Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027 - provides that the harm caused to applicants by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them.
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 - provides that in the common law defence of fair comment on a matter public interest, it is the defamatory meaning found to have been conveyed which is to be considered.
Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 - provides that the level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.
Cummings v Fairfax Digital Australia & New Zealand Pty Ltd [2018] NSWCA 325; (2018) 99 NSWLR 173 - held that 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.
Feldman v Polaris Media Pty Ltd (No 2) [2018] NSWSC 1035 - McCallum J said that she had understood
s 31(1)(a) to require consideration of the question whether the matter was a statement of fact or opinion “through the lens of the defamatory meaning found to have been conveyed”.
Feldman v Polaris Media Pty Ltd as trustee of the Polaris Media Trust t/as The Australian Jewish News [2020] NSWCA 56; (2020) 102 NSWLR 253 - where the very nature of the statement is one of an evaluative judgment.
Fleming v Advertiser‑News Weekend Publishing Co Pty Ltd [2016] SASCFC 109 - provides that statements of the caution to be used in applying dictionary definitions in the ascertainment of defamatory meaning can also be found in Australian authorities.
Goldsbrough v John Fairfax & Sons Ltd [1934] NSWStRp 43; (1934) 34 SR(NSW) 524 - Jordan CJ spoke, at 530, of the comment having to be accurate, i.e, “actually justified by, in the sense of being implicit in, the facts which are stated and proved to be true”.
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) 54 NSWLR 165 - Mason P referred to the statements of Holmes J in
Towne v Eisner 245 US 148 (1918) at 425 that “a word is not a crystal, transparent and unchanged, it is the skin of living thought and may vary greatly in colour and content accordingly to the circumstances and the time in which it is used”.
Hanson‑Young v Leyonhjelm (No 4) [2019] FCA 1981 - relied upon in holding that Mr Dutton must rely on the inferences available from the evidence of the surrounding circumstances as to Mr Bazzi’s state of mind at the time he published the Tweet.
Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290; (2015) 90 NSWLR 695 - provides that there are circumstances in which the conduct of respondent’s counsel can provide a basis for aggravated damages, such as when counsel puts to an applicant that he or she is lying or asks questions which are without support, gratuitous or calculated to insult.
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 - where it has been said that matters which are notorious include facts which constitute “contemporary history or general notoriety”.
Hayson v The Age Co (No 2) [2020] FCA 361 - provides that it is permissible to isolate the damage caused by one defamation from the damage caused by the defamatory publications of others.
Herald & Weekly Times Ltd v McGregor [1928] HCA 36; (1928) 41 CLR 254 - where the circumstance that a respondent has not provided any apology is pertinent.
John Fairfax & Sons Ltd v Hook [1983] FCA 83; (1983) 72 FLR 190 at 195 - provides that the ordinary reasonable reader does not look at the impugned statement in isolation from the whole context in which it is published.
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 - relied upon in holding that Mr Bazzi’s absence does not of course warrant an inference that any evidence he may have given on the topic would have been
adverse to his case. But, in the context that other inferences are open on the evidence, it does permit the inference that his evidence would not have assisted him on the topic.
Joseph v Spiller [2010] UKSC 53; [2011] 1 AC 852 - where the comment must identify at least in general terms what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about and the commentator can, if challenged, explain by giving particulars of the subject matter of his comment why he expressed the views that he did.
London Artists Ltd v Littler [1968] EWCA Civ 3; [1969] 2 QB 375 - provides that whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 - indicates that the phrase “based on” is capable of different shades of meaning according to the statutory context.
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 - provides that conduct with those characteristics will be such as to increase the harm which the defamation has caused or may be supposed to have caused.
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 - provides that while the Tweet must be read a whole, this does not mean that all the words used in it have the same significance.
Morgan v Odhams Press Ltd [1971] 1 WLR 1239 - provides that the ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look at it again before coming to a conclusion and acting on it.
Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 - where generally speaking, a separate sum is not awarded as aggravated damages, because it is not a discrete head of damage.
O’Brien v Australian Broadcasting Corporation [2016] NSWSC 1289 - where McCallum J, after referring to
Manock and
Ahmed, accepted that the meaning pleaded by the plaintiff is relevant to the defence of honest opinion under
s 31 and that “a question to be posed for the tribunal of fact is whether the ordinary reasonable viewer would have understood the meaning
found to have been conveyed as comment as opposed to fact”.
O’Shaughnessy v Mirror Newspapers Ltd (1970) 72 SR(NSW) 347 - where it was held that “defamatory matter which appears to be a comment on facts stated or known but is not an inference or conclusion which an honest man, however biased or prejudiced, might
reasonably draw from the facts so stated or known will not be treated as comment”.
Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 - provided that fair comment is not lost by the absence of a statement of the facts on which the comment is based provided the jury is satisfied that the facts on which the comment is based are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded.
Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 - provides that the judge's awareness must be a product of general experience and not formed ad hoc by a process of considering particular cases and endeavouring, necessarily unsuccessfully, to allow for differences between the circumstances of those cases and the circumstances of the case in hand.
Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 - King CJ said at 191 that a “great deal of latitude is permitted to those who engage in criticism of the conduct and character of persons in the public arena”.
Slim v Daily Telegraph [1968] 2 QB 157 - provides that when the words in the impugned matter are capable of bearing more than one meaning, the Court must decide on one of those meanings.
State of New South Wales v IG Index plc [2007] VSCA 212; (2007) 17 VR 87 - provides that statement may qualify as a comment if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred.
Stocker v Stocker [2019] UKSC 17; [2020] AC 593 - where the judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.
Telnikoff v Matusevitch [1992] UKHL 2; [1992] 2 AC 343 - provides that the question of whether the words in the Tweet are a statement of fact or of opinion should be decided by a consideration of the words themselves.
The Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75; (2009) 21 VR 661 - where the Court does not consider that there is any difference between the common law and the statute as to the need for facts on which a comment or opinion is based to appear in the publication or otherwise be apparent to the reader.
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 - provides that an award of aggravated damages may be made if a respondent has acted in a manner which demonstrates a lack of
bona fides or in a manner which is improper or unjustifiable.
Tse Wai Chun Paul v Cheng [2001] EMLR 777 - provides that a critic need not be mealy‑mouthed in denouncing what he disagrees with.
Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 - regarded an applicant’s knowledge of the falsity of the defamatory matter as an aggravating circumstance.
Analysis:
Mr Dutton contends that the Impugned Words comprised a statement of fact, and not a statement of opinion as required by s 31 of the UDA. In contending that the Tweet constituted a statement of fact, counsel for Mr Dutton contended that the words “Peter Dutton is a rape apologist” is a simple assertion of fact. A statement will more easily be understood as one of fact if it asserts some objectively verifiable matter, but this is not essential for such a characterisation. Counsel for Mr Dutton submitted that the question of whether the words in the Tweet are a statement of fact or of opinion should be decided by a consideration of the words themselves.
The very nature of the statement is of an evaluative judgment. The juxtaposition of the statement “Peter Dutton is a rape apologist” with the link to The Guardian article would have added to the readers’ understanding that an opinion was being expressed, i.e, an opinion drawn from the material for which the link was provided. The ordinary reasonable reader of the Tweet would have understood that it is commonplace for such politicians such as Mr Dutton to attract criticism. Counsel for Mr Dutton did not advance any submission that, “properly construed”, s 31 requires that the “proper material” be stated or referred to in the impugned matter and that their notoriety is insufficient.
No point was taken at the hearing concerning the form of preamble to Mr Bazzi pleading particulars of the proper material and, in particular, to his reference to matters which were “ascertainable” by readers of the Tweet. Mr Dutton submitted that the mere provision of a link to an article in which matters bearing on, or even supporting, the expressed opinion is insufficient because it is unlikely that Twitter readers will follow links, particularly sequential links. By including a portion of the headline to The Guardian article, and its first sentence, Mr Bazzi indicated sufficiently to the readers of the Tweet both the particular matters on which he was basing (or at least purporting to base) his opinion and giving them the means of access to that material so that they could, if they wished, assess for themselves the merit of his assessment of Mr Dutton. Mr Dutton contends that Mr Bazzi’s defence of honest opinion is defeated because he did not, on 25 February 2021, honestly hold the opinion which he published in the Tweet.
Mr Dutton submitted that it should be concluded that Mr Bazzi had not published an opinion honestly held by him because a fair minded person would not have expressed that opinion on the basis of the proper material identified.
Conclusion:
Mr Bazzi has established that his statement was an expression of opinion. The Court orders that the Applicant, by 4 pm on 29 November 2021, should file and serve any affidavits to be relied upon in relation to the issues of costs and interest, together with an outline of submissions concerning these matters, not exceeding five pages. The Respondent, by 4 pm on 3 December 2021, should file and serve any affidavits to be relied upon in relation to the issues of costs and interest, together with an outline of submissions, concerning these matters, not exceeding five pages. The Court will hear submissions concerning the orders to be made to give effect to the judgment, including the issues of costs and interest at 3 pm (AEDT) on 8 December 2021.
