(Image: Private Media/Tom Red)

Peter Dutton won his defamation case against refugee advocate Shane Bazzi via a reasonably uncontroversial application of the law. This is the simple breakdown:

  • Bazzi tweeted a link to a Guardian Australia article reporting Dutton’s claims that some female refugees on Nauru were making false rape allegations to try to get to Australia, and added his comment: “Peter Dutton is a rape apologist”
  • The judge found that the meaning ordinary readers would have taken from the tweet was that Dutton is a person who excuses rape. That’s defamatory
  • Bazzi’s defence was honest opinion; to succeed, the opinion must be based on true facts which are either stated or “notorious”
  • The judge found that Bazzi didn’t honestly hold the opinion, partly because he suspected Bazzi didn’t actually know what “apologist” means (Bazzi had chosen not to give evidence)
  • Most importantly, Bazzi’s opinion wasn’t sufficiently “based” on the notorious news about Dutton, i.e. his false rape accusation claims or his public comments about Brittany Higgins.

The last point was the critical one: Dutton had (notoriously) referred to Higgins’ rape allegation as a “she said, he said” matter, causing social media to light up at the time. However, the judge said, Dutton’s comment did not “say anything at all about his attitude to rape”. I have some difficulty with that — “he said, she said” has a long and insidious cultural history — but it’s possible to see how the judge concluded that Bazzi’s tweeted opinion was too much of a stretch from that foundation.

So, Dutton wins and gets the pathetically small damages award of $35,000 for what the judge found were his temporarily hurt feelings. Of actual damage to his reputation or harm to his career, there was no evidence. Dutton is at serious risk now of an adverse costs order; he’ll almost certainly end up well out of pocket. That is, for wider purposes, by the by.

There is much discussion about the chilling effect on the public discourse and damage to democracy from politicians suing for defamation, especially their newfound enthusiasm for going after ordinary punters having a swing at them on social media.

Instead of diving straight into the politicised argument, let’s approach it from a different perspective: social utility. Defamation law, like all law, is a construct. It was invented and is constantly adapted for one purpose only: to deliver a social good. It has no other reason to exist.

The utility of a law should be regularly tested by asking what social good it is serving. How is it making our society better?

In Dutton’s case, the judge applied the law correctly in principle. Although one can argue with some of his conclusions, that’s not the point; the case demonstrates that defamation law as it is has certain very specific social effects.

What are the beneficial effects delivered by this application of the law? There are arguably two: first, Dutton’s hurt feelings have been vindicated by money; secondly, a deterrent has been communicated to everyone to be more careful with what they say about people who have the money and power to pursue defamation litigation.

The negative effects are obvious, and are exemplified by the calls I took from people in the immediate aftermath of the judgment’s publication, who wanted to tweet their views about Dutton’s decision to sue and what the case means, but were scared that he’d come after them next.

A society in which it is too risky to make public comments about public figures without getting legal advice first is not a free society.

That is what we are weighing in the balance, as the law of defamation stands right now: the hurt feelings of one man — who has limitless opportunity to defend his reputation, and the indemnity of parliamentary privilege to protect him from consequences — against the silencing effect that each case of this kind creates and compounds.

That is the description of a law which is clearly doing more harm than good. So much more, it’s laughable to think that we have just been through one round of major defamation law reforms and are about to finish another, neither of which even attempted to address this obvious, lethal flaw.