What we learned from the Dutton defamation case

22 May 2022 By Jerome Doraisamy
Dutton defamation case

Last week, the Full Court of the Federal Court overturned the finding that a refugee activist had defamed Peter Dutton MP in a tweet early last year. The decision highlights, lawyers say, that there is “no easy solution to politicians using defamation to silence dissenters”.

Last Tuesday, the Full Court of the Federal Court – comprising justices Steven Rares, Darryl Rangiah and Michael Wigney – overturned the decision of now-retired Judge Richard White, who had found that refugee activist Shane Bazzi had defamed Mr Dutton in a now-deleted tweet in February 2021.

The tweet, which included a link to an article from The Guardian that quoted Mr Dutton when he alleged that refugee women in Nauru detention centres were using false rape claims as a ploy to get to Australia, labelled Mr Dutton a “rape apologist”.

In the earlier proceedings, Mr Bazzi argued he was exercising fair comment and honest opinion, but Judge White determined that the tweet conveyed the defamatory imputation that Mr Dutton “excuses rape”. Mr Bazzi was ordered to pay $35,000 in damages.

Advertisement
Advertisement

On appeal, judges Rares, Rangiah, and Wigney held – in light of the notion that “Twitter involves conversations where participants ordinarily correspond without using carefully chosen expressions”, O’Brien Criminal and Civil Solicitors noted in a statement – that it is the general impression created in the mind of the ordinary reasonable reader that is important, and not the individual dictionary meaning of the words used.

The firm (which represented Mr Bazzi in the proceedings, explained that Mr Dutton had attempted to argue that the tweet should be separated into two parts, consisting of the statement from Mr Bazzi and the preview of the link to the article from The Guardian. Mr Dutton submitted, the firm went on, that the statement from Mr Bazzi gave rise to an imputation that he excuses rape.

However, the Full Court concluded that the tweet must be read as a whole.

The judges noted that the words used in the preview of the link to the article from The Guardian “did not convey that Mr Dutton had any view about the crime of rape or about rapists; rather it was focused on his sceptical response to women’s claims of rape” and that “The Guardian material centres on allegations of rape, not the actual commission of it”.

Moreover, the three judges found that Judge White had erred in “downplaying the balance of the significance of the tweet” and that his honour was “overly influenced by dictionary definitions” of individual words, as opposed to considering the impression created in the mind of the reader by the tweet as a whole.

Lawyers Weekly Discover

“A publication either conveys a meaning or it does not. The answer to that question cannot be, like beauty, in the eyes of the beholder,” the Full Court deduced.

“The ordinary reasonable reader would understand that the point that the tweet was conveying was that a “rape apologist” behaves in a way that Mr Dutton had in expressing scepticism about the claims of rape. That is a far cry from conveying the meaning that he excuses the rape itself”.

Was anything learned from these proceedings?

O’Brien Solicitors said, post-decision, that these proceedings should never have been brought.

“This has been a significant and stressful fight for Mr Bazzi. He has had to defend a legal action brought by one of the most powerful men in Australia,” the firm said.

“Those who are elected to public office must expect to be subject to robust criticism, especially with the advent of social media, and society is entitled to expect a greater level of tolerance from such persons. It should only be a rare case where a politician sues a citizen, and not one like this where Mr Bazzi was clearly making a comment about Dutton’s statements about women in Nauru.

“Hopefully this victory makes the boundaries much clearer and makes politicians think twice before using defamation as a tool to silence commentary they don’t like.”

In conversation with Lawyers Weekly, O’Brien Solicitors principal Peter O’Brien said that while social media has been around for over 15 years, the courts haven’t had many opportunities to clarify issues related to social media when it comes to defamation.

The Full Court of the Federal Court has set a precedent, he outlined, “about how tweets must be read in defamation”.

“While it seems wholly uncontroversial, where someone has tweeted a link and added a comment, the preview to the link shown within the tweet must be taken into consideration at the same weight as the comment itself,” he said.

On this point, the Full Court noted: “The reader would understand that Mr Bazzi’s six-word statement was intended to convey a derogatory view of Mr Dutton in connection with what he said about rape. The reader would read on to absorb, in the fleeting way a reader of a tweet does, the content of The Guardian material.”

“The court reinforced the notion that, when looking at a publication, it is not the sum of each words’ individual definition, but the definition of the publication on the whole,” Mr O’Brien listed.

Marque Lawyers managing partner Michael Bradley took a different view, noting that “for all the excitement surrounding it, the case hasn’t really taught us anything useful at all”.

“There might have been an interesting exploration of Bazzi’s honest opinion defence (whether saying Dutton was a “rape apologist” was a statement of opinion or fact, and to what extent Bazzi could rely on notorious background circumstances to support it), but Bazzi didn’t appeal from the trial judge’s finding that that defence had failed,” he advised.

“Instead, the appeal ran on the sole question of whether the defamatory imputations Dutton had pleaded – that he excuses or condones rape – arose at all from what Bazzi tweeted. That was a narrow issue of pleading.”

In the end, Mr Bradley went on, Mr Bazzi won the appeal for the same reason he lost in the first instance: “All of the judges at both levels couldn’t make any sense of his tweet.

“He had linked a Guardian article about Dutton’s claim that refugees on Nauru were making false rape allegations, and tweeted, “Peter Dutton is a rape apologist”, with no further explanation. How the article’s content could lead him to his statement about Dutton was a mystery, since it was an obvious non-sequitur.

“Everyone seems to have agreed that he probably didn’t really know what the word “apologist” means. The trial judge had said it still conveyed that Dutton excuses rape, but the appeal bench concluded that it didn’t convey anything much at all other than the fact that Bazzi really doesn’t like Dutton (which isn’t defamatory).”

It was, therefore, Mr Bradley surmised, a “case that arose out of confusion and produced no useful lessons at all”. 

“Except, perhaps, that getting a defamation win over a salty tweet isn’t as easy as some politicians think,” he remarked.

“If so, that’s a good result, but Dutton shouldn’t have needed the Full Court to tell him that.”

Reflecting on the successful appeal, Mr O’Brien added that there is “no easy solution to politicians using defamation to silence dissenters”.

“Unfortunately, there are imbalances of power throughout the law,” he posited.

“We would only hope that this serves as a reminder that regardless of power and wealth, justice can prevail.

The citation for these proceedings is Bazzi v Dutton [2022] FCAFC 84.

What we learned from the Dutton defamation case
Intro image
lawyersweekly logo