This year,some of those comments made their way to the courts. Former NSW deputy premier John Barilaro sued YouTube personality Jordan Shanks,the owner of the video-sharing platform,over allegedly defamatory videos posted on Shanks’ Friendlyjordies channel. (The case against Shanks)
Former NSW deputy premier John Barilaro and YouTube personality Jordan Shanks.Supplied
Defence Minister Peter Dutton sued a refugee advocate,Shane Bazzi,over a six-word tweet accusing him of being a “rape apologist” and and $825 in interest.
But there are signs that the Federal Court,where the bulk of political defamation cases are being filed,is seeking to dissuade some social media cases from darkening its doors.
There is also a new legal requirement in most states and territories in Australia,including NSW and Victoria,that a plaintiff seeking to sue someone for defamation must now show a publication “has caused,or is likely to cause,serious harm” to their reputation before they can bring a case.
The serious harm threshold,aimed at weeding out trivial claims,was modelled on British law and was intended to be introduced across the country via identical legislation passed by all states and territories this year. Western Australia and the Northern Territory have yet to adopt the changes,despite agreeing to them last year.
. It did not apply retrospectively to the Dutton case,which was filed in April,but it may have affected the result if it had.
Dutton’s case resulted in a relatively small damages payout,falling well short of the maximum of $432,500 that could have been awarded.
Federal Court Justice Richard White,who had,said “a sense of perspective does have to be brought to the assessment of the seriousness of the defamation”.
Justice White rejected Bazzi’s defences of honest opinion and fair comment on a matter of public interest,and said the comment was “no doubt a serious defamation”. But he also noted the tweet “was not published in any mainstream media and was published to a relatively small number of people”.
Bazzi deleted the tweet,which the court heard was viewed by fewer than 1221 people,after Dutton’s lawyers wrote to him,and Justice White said readers “would not have understood it to be the measured assessment of a serious political commentator”.
Defence Minister Peter Dutton sued refugee advocate Shane Bazzi over a tweet.Dominic Lorrimer
,Justice White declined to order Bazzi to pay all of Dutton’s legal costs and said the case could have been brought in a lower-level court such as the Queensland Magistrates Court,where legal costs are lower.
He ordered Bazzi to pay Dutton’s legal costs “on the scale appropriate to an action brought in the Queensland Magistrates Court”,meaning Dutton is on the hook for a significant amount of his own costs.
If that was not enough to dissuade some politicians from taking up the cudgels of a defamation action,the new serious harm threshold may pose an obstacle.
University of Sydney Professor David Rolph,an expert on defamation law,says “now that serious harm is an element of the cause of action,plaintiffs will be required to prove some actual damage to reputation in order to obtain damages”.
Historically,the courts did not require proof that a defamatory publication was read by a person who knew the plaintiff and that it actually caused them to think less of the plaintiff. Damage to reputation was presumed to flow from a defamatory publication,and a plaintiff could recover at least nominal damages without proving any actual damage.
Rolph says “serious harm is entirely novel in Australia so,as yet,it’s not clear what will constitute serious harm”. To the best of his knowledge,there was no example in English law where a court had found a tweet in similar circumstances to the Dutton case constituted serious harm.
Dutton was the sole witness in his case and gave evidence about the hurt to his feelings arising from the tweet. There was no evidence given about damage to his reputation,meaning his claim would not have passed the first hurdle under the new law.
Rolph notes that defamation cases involving politicians involve particular difficulties because “defamation law proceeds on the basis that there can be a single or stable view of someone’s reputation”.
“But of course the reality is that ... because of the nature of partisan politics,for any given politician there will be people who are supporters and there will be people who are detractors,” he says.
“Where a publication touches upon someone’s political life,the likelihood that a favourable defamation verdict will,in fact,change people’s minds I think is somewhat unrealistic. Many people have very settled political views which are unlikely to be altered by a favourable defamation verdict.”
Michael Douglas,senior lecturer at the University of Western Australia’s Law School,believes the serious harm test would have been met in the Dutton case if it had been the law at the time.
“In my view,the serious harm threshold will be very easy to overcome where the allegation is serious,provided it is seen by,that is,published to,a non-negligible audience,” he says. “A post on Twitter that gets enough traction to get a pollie’s attention should overcome the standard.”
Douglas predicts we will see more such cases. While he was previously of the view that “politicians should have the right to sue in defamation just like anyone else in society”,recent events had made him reconsider that position.
He says Australia “should consider removing the rights of federal politicians to sue for defamation at all”.
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