With the election outcome now decided, for all practical purposes, we can now happily turn to that other theatre of conflict – the courts. In March last year, around the time he was moving from home affairs to defence, the Liberal party strongman Peter Dutton issued a warning to the citizens.
He was going to sue people who posted rude things about him on Twitter. “Don’t Mess with Pete” was the message. He’s going to hunt you down and bring you to justice.
His target was Shane Bazzi, an impecunious social justice campaigner, who on 25 February 2021 told his Twitter followers, “Peter Dutton is a rape apologist”.
This six-word comment was linked to a Guardian article from June 2019 where Dutton told Sky News that women detained on Nauru had been “trying it on” by claiming they were raped.
In his especially nurturing way, Dutton claimed this was a ploy by these women to get to Australia for medical treatment. No doubt it was a shot across the bows of the medievac legislation, which the government was desperately seeking to repeal.
On the first round, the federal court judge Richard White gave Dutton a small measure of success, awarding him $35,000 in damages because relatively few people had seen the tweet. After delving through dictionary definitions, the judge decided the tweet meant that Dutton “excused” rape and this was defamatory.
Nothing seemed to turn on the fact that in 2016, Justice Mordecai Bromberg found that Dutton exposed a female asylum seeker to serious medical and legal risks and breached his duty of care after the woman was raped on Nauru.
Justice White found that Bazzi’s tweet caused offence and distress to the minister, but fortunately there was no ongoing harm. Needless to say, the defences of honest opinion and fair comment did not fly.
The sting for Dutton came later, in December 2021, when the trial judge decided that the minister should not recover his full costs because this was a case more appropriately decided in a magistrates court, and should not have been chewing up time and resources in the federal court.
By now, Dutton was most likely underwater with the costs of the matter and his wider campaign to still critical voices.
Bazzi appealed Justice White’s judgment on one point only – that the tweet did not mean Dutton “excused” rape. He argued that the trial judge had not properly taken into account the link to the attached Guardian article which showed, at worst, Dutton was “skeptical” about allegations of rape from asylum seekers on Nauru.
So it comes as reassurance to tweeters that the full federal court found the words of a tweet do not stand alone if there is context provided by a link to more information. The six words, “Dutton is a rape apologist” were “anchored” to the Guardian article about the claim that allegedly raped women on Nauru were “trying it on”.
There was then a hunt to find what the tweet with the link could possibly mean.
Justice White initially thought that an “apologist” was someone who “defends” something or someone. He then moved to saying that an “apologist” is a person who “excuses” something or someone.
Appeal judge Michael Wigney said it is a “mystery” how the trial judge got from “defends” to “excuses”.
Certainly, there was criticism of Justice White’s overreliance on dictionary definitions – something frowned on in the special parsing landscape of defamation courts.
The appeal judges also pointed to a couple of English cases where it was specifically determined that in the social media world things are different. Facebook and Twitter are “conversational” media so it would be wrong to “engage in elaborate analysis” of disparaging comments.
An “impressionistic approach” must be taken to divining what a tweet conveys to an ordinary reasonable reader. To this extent, we find Humpty Dumpty lurking in the shadows: “It means just what I choose it to mean – neither more not less.”
In the process we are left with some worthwhile judicial guideposts: an otherwise defamatory comment can be saved by a link and not everyone reads social media comments all that carefully.
We’re seeing early baby steps where judges are coming to terms with the way people communicate on tech platforms, where meanings are interpreted differently from publications by traditional news media and where surrounding commentary can provide a fuller context and an escape hatch.
Unfortunately for Dutton he had not adequately factored in the vagaries of the law. As with many others – Craig McLachlan being another instant example – defamation is riddled with cases when fools rushed in where angels feared to tread.
Richard Ackland publishes 500Words.com.au
