Rick Sarre, University of South Australia and Ben Livings, University of South Australia
It has been a busy year for defamation lawyers. There has been a mixed bag of outcomes, too.
The two highest profile cases delivered different results: a win for independent MP Alex Greenwich in his suit against fellow parliamentarian Mark Latham, but a loss for Bruce Lehrmann in his defamation action against Network Ten and journalist Lisa Wilkinson.
The latest case (which began in the Federal Court in September this year) has seen a win for Moira Deeming, a former Liberal Legislative Council MP, who sued a fellow Liberal, Victoria’s Opposition Leader John Pesutto. She was seeking damages for comments he made in reference to her appearance at an anti-trans rights rally in March 2023.
The rally, under the banner “Let Women Speak”, featured international anti-trans activist Kellie-Jay Keen.
As it happened, the rally was gate-crashed by neo-Nazis. Pesutto made remarks that the court today found conveyed the imputation that Deeming associates with Nazis.
He said shortly after the rally that he would move a motion to expel her as a member of the parliamentary Liberal Party.
Why did it end up in court?
Deeming denied any connection with Nazism. Pesutto’s words, she said, were damaging to her reputation and satisfied the legal requirements of defamation law in that right-minded Australians would now think less of her.
The hateful, private messages sent to Deeming that followed the comments of her leader were evidence of that, she argued.
Many of the spiteful ripostes that were posted on social media in the days and weeks following Pesutto’s critique of his colleague are found in Justice David O’Callaghan’s judgment. They make for appalling reading.
Ultimately, she was expelled from the parliamentary Liberal Party in May 2024 after she threatened legal action against Pesutto. She now sits in parliament on the crossbench.
Pesutto’s legal team rejected the claims, saying he had not called Deeming a neo-Nazi, nor a white supremacist or anything similar.
What did the judge find?
In matters such as this, Justice O’Callaghan (who had also presided over the Greenwich vs Latham case) had the task of determining whether the comments had caused, or were likely to cause, serious harm to her reputation.
In the end, he was satisfied Deeming had proved that defamatory imputations had been conveyed to the ordinary reasonable reader, listener or viewer.
He concluded:
The imputations that I have found to have been carried are very serious ones. In my view […] they were inherently likely, using mass media to communicate a message to the general public in Victoria, to cause serious harm to Mrs Deeming’s reputation. That is especially so in circumstances where the leader of her own Parliamentary party was moving for her expulsion from it.
Because he decided the comments did cause serious harm, Justice O’Callaghan then had to decide whether Pesutto could rely upon one of the defences found in the Victorian Defamation Act. In this case, the relevant defences were public interest and honest opinion. He determined that they had failed:
In the case of the media release, the 3AW and ABC interviews and the press conference, when bandying around words like “Nazi” and “Nazi sympathisers” and people who “associate” with them or “help” them and the like, it was incumbent on Mr Pesutto to be careful not to convey a meaning that he did not intend.
The judge said “the use of loose language provides greater opportunity for the ordinary reasonable reader to infer adverse meaning from the published matter than the use of precise and unambiguous language. And Mr Pesutto knew as much”.
He awarded Deeming A$300,000 in damages for non-economic loss and as “reparations for the harm done to Mrs Deeming’s reputation and the need for vindication of it”.
What is the lesson from this case?
There is always the potential for a defamatory imputation when imprecise language is used.
Free speech is an important part of our political and social landscape, evidenced by the defences in defamation law of honest opinion, public interest, qualified privilege and contextual truth.
But its dominance can easily be lost when that speech slips into maligning people who justifiably enjoy the confidence of their peers.
It is incumbent on all speakers in the public sphere to be very clear in their language about what they are and are not saying. If not, the law will provide a remedy.
Saying anything at all that conveys the imputation a person associates with Nazism is a dangerous game. Indeed, Victoria was the first Australian jurisdiction to criminalise the salute that is now a federal crime.
As this case has shown, one cannot play fast and loose with politically-loaded slurs.
Rick Sarre, Emeritus Professor of Law and Criminal Justice, University of South Australia and Ben Livings, Associate Professor of Criminal Law and Evidence, University of South Australia
This article is republished from The Conversation under a Creative Commons license. Read the original article.
Header image: Left, Moira Deeming. Right, John Pesutto at a Pride event (Facebook).
