Key lessons

• Publishers seeking to rely on an honest opinion defence will need to show the opinion was capable of being rationally based on the proper material – a common substratum of fact was held to be insufficient.
• Defamation plaintiffs should carefully consider the likely costs of defamation proceedings before commencing proceedings, particularly when choosing which court to sue in, in order to avoid being out of pocket even where they are successful.
• Had these proceedings been commenced after the amendments to the Uniform Defamation Acts came into effect, it would have been interesting to see how the “serious harm” threshold would have applied to this case.

Overview

In the recent decision of Dutton v Bazzi [2021] FCA 1474 (24 November 2021), White J awarded Defence Minister Peter Dutton $35,000 in damages for defamation in relation to a tweet published by an individual which said “Peter Dutton is a rape apologist” and shared a link to an article in The Guardian.

White J found that the tweet conveyed a defamatory imputation that Dutton “excuses rape“. The defendant, Bazzi, sought to rely on the honest opinion defence in s 31 of the Defamation Act 2005 (NSW), as it applied prior to the amendments which came into effect on 1 July 2021.

The Court held that the tweet was an expression of opinion and was on a matter of public interest. However, with respect to the requirement that the opinion be based on proper material, the Court found that while the proper material relied on was sufficiently contained in the tweet or otherwise notorious, Bazzi had failed to show that the opinion was “based on” this proper material. Further, the Court held the opinion was not honestly held by Bazzi. These aspects are considered in more detail below.

Was the tweet a statement of fact or opinion?

White J found that the defendant was stating his personal assessment of Dutton and amounted to an evaluative judgment. The contrast between Bazzi’s comments “Peter Dutton is a rape apologist” and the link to The Guardian article supported the reader’s understanding that an opinion, drawn from the material in the link provided, was being expressed.

Was the opinion based on proper material

His Honour highlighted that the main issue was whether the facts were “presented to the minds of the readers so as to enable them to assess for themselves the opinion”.

Bazzi relied on a number of facts stated in the linked article from The Guardian as being proper material. White J found it was irrelevant whether only a minority of Twitter users clicked on the link to The Guardian article to view the facts, as this is akin to readers choosing to turn to the next page in a newspaper article to read relevant facts for themselves. His Honour found that the inclusion of a link, when accompanied by an indication of what is included in the link, constituted a sufficient indication of the facts on which the opinion is based. It was also found that other facts relied on as proper material were notorious.

White J then considered whether Bazzi’s opinion was “based on” the proper material. His Honour accepted there is a requirement for some rational connection between the proper material relied on and the opinion, referencing McCallum J’s propositions in obiter in Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091 and Feldman v Polaris Media (2020) 102 NSWLR 733. His Honour found that, in the context of s 31, the phrase “based on” means “having its foundation in” the proper material and it is insufficient for the proper material to merely provide the occasion for the respondent to express the opinion.

White J concluded that the proper material relied on here was different to the opinion expressed by Bazzi, such that the opinion could not be held to be based on the proper material. For example, it was held that Dutton questioning the bona fides of rape victims on Nauru was different to him diminishing the significance of rape, or any action which involves excusing rape. His Honour said: “Mr Bazzi was not making some stark or exaggerated or prejudiced comment based on the material but making a different assertion again, directed to Mr Dutton’s attitude or conduct in relation to the very act of rape. The rational relationship, to the extent to which it exists, lies in the subject matter of rape which is common to both the statement and the material fact relied on. But, as noted, more is required than a common substratum of fact or a subject matter.”

Was the opinion honestly held by Mr Bazzi?

His Honour then considered whether Bazzi honestly held the opinion expressed. Bazzi did not give evidence in the proceedings.

White J considered that Bazzi may have used the word “apologist” without understanding the meaning he was in fact conveying (ie, that Dutton excuses rape) or appreciating the effect of his words, and it therefore followed that he did not hold the opinion actually conveyed by the words. His Honour observed that Bazzi denied that his tweet conveyed the meaning that Dutton excuses rape. Though this was not absolutely inconsistent with Bazzi believing that Dutton excuses rape, his Honour highlighted this as unusual. It was therefore found Bazzi did not honestly hold the opinion.

Damages and costs

Dutton was awarded $35,000 in compensatory damages, in circumstances where there was limited publication (1,221 views of the tweet). Dutton’s claim for aggravated damages was denied.

In a separate decision on 8 December 2021, White J held that Dutton should only be awarded his costs on the scale appropriate to an action brought in the Queensland Magistrates Court. Rule 40.08 of the Federal Court Rules allows a party to apply for such an order where the damages awarded are less than $100,000 and the proceeding could more suitably have been brought in another court or tribunal.

Dutton submitted that, amongst other things, his public office made vindication of his reputation by a national court appropriate. However, White J held there is a public policy consideration in litigation being pursued in courts in the judicial hierarchy which are appropriate for the litigation, and that this was a proceeding which could have appropriately been brought in a Magistrates Court or equivalent.

It’s likely that Dutton’s damages payout will not be sufficient to cover the shortfall in fees between what his lawyers have charged to him and what he is entitled to recover from Bazzi, leaving him out of pocket despite “winning” his case.

Bazzi has indicated he is appealing the decision.