Dutton v Bazzi

Case [2021] FCA 1474


FEDERAL COURT OF AUSTRALIA

Dutton v Bazzi [2021] FCA 1474

File number: NSD 352 of 2021
Judgment of: WHITE J
Date of judgment: 24 November 2021
Catchwords:

DEFAMATION – publication of a tweet with a hyperlink to an article – whether four imputations alleged by the Applicant were conveyed by the Tweet – consideration of the ordinary reasonable reader’s understanding of the statement “the Applicant is a rape apologist” – imputation that the Applicant “excuses rape” found to be conveyed by the publication.

DEFAMATION – defences – defence of honest opinion pursuant to s 31 of the Defamation Act 2005 (NSW) and the common law defence of fair comment on a matter of public interest – whether the impugned statement was a statement of fact or opinion – whether the opinion was based on proper material – whether the matters relied upon by the Respondent were referred to in the impugned matter or otherwise notorious – lack of rational relationship between the matters relied upon and the opinion the Respondent claimed to have held – whether the Applicant proved the Respondent did not honestly hold the opinion in the publication pursuant to s 31(4) of the Defamation Act.

DAMAGES – s 34 of the Defamation Act – consideration of the relationship between the harm suffered by the Applicant and the damages to be awarded – the extent to which awards of damages in other cases should be considered – consideration of the extent of the publication – claim for aggravated damages rejected.

DEFAMATION – remedies – claim for injunctions to restrain the Respondent permanently from publishing the impugned matter and the imputations the Court has found to be conveyed in the publication – claims for injunctions rejected.   

Legislation:

Evidence Act 1995 (Cth) s 140(2)

Racial Discrimination Act 1975 (Cth) s 9(1)

Uniform Defamation Acts ss 4, 6, 25, 26, 30, 31, 34, 36

Defamation Act 2005 (NSW) s 31

Cases cited:

Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158

Associated Newspapers Ltd v Dingle [1964] AC 371

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Barrow v Bolt [2013] VSC 226

Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

Bolten v Stoltenberg [2018] NSWSC 1518

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Bristow v Adams [2012] NSWCA 166

Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Cassell & Co Ltd v Broome [1972] AC 1027

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245

Charleston v News Group Newspapers Ltd [1995] 2 AC 65

Cheng v Tse Wai Chun [2000] 3 HKLRD 418

Crampton v Nugawela (1996) 41 NSWLR 176

Cummings…

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AGLC
Dutton v Bazzi [2021] FCA 1474
Case
[2021] FCA 1474
Decision Date

CaseChat Overview and Summary

In the case of Dutton v Bazzi, the plaintiff, Mr Dutton, pursued legal action against the defendant, Mr Bazzi, over a tweet that was published on Twitter. The tweet, which included a photograph of Mr Dutton and a link to a newspaper article, implied that Mr Dutton was a "rape apologist". Mr Dutton claimed that this was defamatory, and sought damages as well as an injunction to prevent the tweet from being published again. The case was heard in the Federal Court of Australia, where the judge was tasked with determining the meaning conveyed by the tweet, whether it was defamatory, and if Mr Bazzi had a valid defence.

The court had to decide if the tweet conveyed the imputation that Mr Dutton was a "rape apologist", and whether this was defamatory. Additionally, the court needed to determine if Mr Bazzi had a valid defence under the statutory defence of honest opinion or the common law defence of fair comment on a matter of public interest. The court also had to consider the appropriate audience for the tweet and the context in which it was read.

The court found that the tweet did convey the imputation that Mr Dutton excuses rape, which was defamatory. The court determined that Mr Bazzi had not established either the statutory defence of honest opinion or the common law defence of fair comment on a matter of public interest. As a result, judgment was entered for Mr Dutton in the sum of $35,000. However, Mr Dutton's claim for injunctions was refused. The court will hear from both parties regarding interest and costs before entering the final judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, Mr Dutton’s claim for injunctions is refused. Conclusion In summary, for the reasons set out above, I have found that the Tweet did convey the imputation that Mr Dutton excuses rape; that this was defamatory of Mr Dutton; that Mr Bazzi has not established the statutory defence of honest opinion or the common law defence of fair comment on a matter of public interest; that judgment should be entered for Mr Dutton in the sum of $35,000; and that Mr Dutton’s claim for injunctions should be refused. Before entering judgment, I will hear from the parties with respect to interest and costs.

Ratio Decidendi

Legal Principle Established

In summary, these authorities suggest that the following approach is appropriate: (a)the ordinary reasonable readers to be considered are members of the class of users of social media;(b)Twitter is a conversational medium through which the ordinary reasonable reader tends to scroll quickly and pass on with the consequence that an impressionistic rather than a closely analytical approach is appropriate. The essential message being conveyed by a tweet is likely to be absorbed quickly by the reader; and(c)in the discernment of the meaning conveyed to the ordinary reasonable reader, account should be taken of the whole tweet and the context in which it is read by that reader. Defamatory meaning – consideration I set out at the commencement of these reasons the imputations alleged by Mr Dutton. The issue to be addressed is whether the Tweet did convey any of those meanings to the ordinary reasonable reader of Twitter. In making the assessment of what the Tweet conveyed, regard must be had not only to the words “Peter Dutton is a rape apologist” but to the whole of the Tweet, including the photograph of Mr Dutton, the words “The Guardian” and the words which followed. Neither counsel contended that regard should be had to the full content of The Guardian article in determining the meaning conveyed by the Tweet. It was common ground that the ordinary reasonable reader of Twitter would have understood the photograph of Mr Dutton, the words “The Guardian”, and the words appearing under the photograph to be a link to The Guardian article. It is less clear that the ordinary reasonable reader would have understood that all the words under the photograph of Mr Dutton were extracts from The Guardian article, but I accept that that was the case, having regard to common usage on Twitter and that the last three lines were in the blue font of a hyperlink. Counsel for Mr Bazzi submitted that an important aspect of the context to be considered is the public reporting of the allegation of rape by Ms Brittany Higgins, with which the publication of the Tweet was closely contemporaneous. Ms Higgins had made public on 15 February 2021 her claim of having been raped in Parliament House on 23 March 2019. The allegation was given widespread coverage in the print, television, radio and online media having regard, amongst other things, to the circumstance that Ms Higgins was, at the time of the alleged rape, employed in the office of the then Minister for Defence (Senator Reynolds); that the rape was said to have taken place in the Ministerial suite; that the perpetrator was said to be another Ministerial staffer; the issues concerning the manner in which Ms Higgins’ allegations had been addressed by the Government at the time she had first made them, including Ms Higgins’ report that she had felt forced to choose between reporting the rape to police and the keeping of her job; and the potential breach of the security of Parliament House by the alleged perpetrator and Ms Higgins entering the building in the circumstances they had.