Daher v Nationwide News Pty Ltd

Capacity issues in relation to imputation (iv)

1. The relevant principles in relation to the threshold issue of capacity are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity at the threshold level is "an exercise in generosity not parsimony", as well as being a "matter of impression… the impression is not of what the words mean but of what a jury could sensibly think they meant". That test differs from the consideration of such issues at the trial.
2. The difficulty faced by the court in applications of the kind brought by the defendant here is that the matter complained consists of alternating sections of what is known as "bane and antidote": Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) (at 419), namely statements making allegations which are followed by what is asserted to be a refutation of those allegations.
3. In the present case, the matters complained of alternate between allegations about the plaintiff's asserted support for organisations carrying out terrorist attacks (the "bane") followed by the "antidote", namely statements that there is "no suggestion" (paragraph 18) that the plaintiff and his friends "engaged in or planned terror activities", and that the police do not regard their photographed activities as illegal (paragraph 14). These mixed messages are further complicated by the attempted use of satire ("GUNS N' [sic] POSERS" being an attempt at a pun on the name of the rock group "Guns 'n' Roses") and use of dramatic language such as "bloody and confronting images".
4. The issues for determination where there is an imputation involving the reconciliation of "bane and antidote" are explained by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd at [143]-[146]: "[143] The general view is that the jury is the proper tribunal for determining whether the antidote has overcome the bane: Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 (at 674) per Glass JA; see also Hutley JA (at 670) referring to Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) (at 419). There, Samuels JA said: " … cases (i.e. when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning) must be comparatively rare." [144] Thus, it is rare to conclude that the antidote of the matter complained of swamps its bane at the capacity stage: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679(n) ("Bik"); see also Cruise v Express Newspapers Plc [1999] QB 931 (at 939-941); Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38 (at [25]-[44]) per Simon Brown LJ (Mummery and Dyson LJJ agreeing). [145] The facts of Bik illustrate the singularity of the application of the bane and antidote principle in that case. The matter complained of was a newspaper report of a parliamentary sitting in which the Minister of Justice informed the House that the plaintiff had been "completely cleared" of any involvement in the design of a faulty crane that led to a fatality, or of giving instructions in relation to the temporary repair of the crane which proved inadequate. Herron CJ (Manning JA agreeing) held (at 682) that the whole tenor of the article was. … to inform the reader that Mr Bik was wholly cleared, and no fair-minded reader could imply that Mr Bik bore any responsibility for the fatality. He would read that an injustice had been done by having had for eight years wrongful acts attributed to him, and now he has been cleared of it. So far from being defamatory, the article is laudatory of the plaintiff. [146] The bane and antidote theory reflects the fundamental proposition the "reader is entitled to give some parts of the article more weight than other parts": Rivkin (at [50] per McHugh J). To apply, however, something "disreputable to the plaintiff" must be "removed by the conclusion": see Chalmers v Payne (1835) 2 Cr M & R 156 (at 159); 150 ER 67 (at 68); Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 (at [16]) per McColl JA (Santow and Basten JJA agreeing)."
5. The defendant's submission is that the references to "Hezbollah", "martyrs", "Islamic State", "Syrian president Bashar Al-Assad", the publication of "bloody and confronting images from the Syrian warzone" on social media and references to "Hezbollah" as a terror organisation are overcome by the following antidote: 1. The statement from the NSW Police that although the photographs published are "tasteless", they "do not appear to show illegal activities" (paragraph 14) and by Shooters and Fishers MP Robert Borsak that the guns appeared compliant (paragraph 15). 2. The statement in paragraph 17 that although Hezbollah (the organisation whose flag the plaintiff and his children posed with) had been responsible for terror attacks in the past, it was now seeking to strengthen its public image. 3. The statement that "There is no suggestion the men, who The Daily Telegraph has made repeated attempts to contact for comment, engaged in or planned terror activities" (paragraph 18). 4. References in the matter complained of to the men being "fiercely opposed" to the Islamic State and being staunch supporters of the Syrian President, Mr Assad, whose photograph appears in the article (paragraphs 6 and 10).
6. However: 1. Although NSW Police do not consider the conduct illegal, the PETA spokesperson says that any compassionate person would be "disturbed" by the photographs of the men posing with animal body parts (paragraph 12) and a game hunting property owner said he would not allow such activity on his farm (paragraph 15); 2. The context of the statements about Hezbollah seeking to strengthen its public image is put forward in a context where the ordinary reasonable reader would be invited to draw inferences as to whether this was in fact the case, given that it was still listed as a terror organisation by the Australian Government (paragraph 16). 3. The statement in paragraph 18 immediately follows the reference to the plaintiff and his children posing with a Hezbollah flag, in circumstances where those photographs are clearly part of the series of photographs of bloody and confronting images of decapitated soldiers. 4. While the men are portrayed as supporting "Syrian dictator" (paragraph 4) President Assad rather than Islamic State, that does not necessarily mean they are not terrorists or terrorism supporters, as the article concludes by pointing out that President Assad's government "killed hundreds of his own civilians in chemical attacks in 2013".
7. Unlike the matter complained of in Corby v Allen & Unwin Pty Ltd, this is not a book which the ordinary reasonable reader would read with care, but a newspaper article which, thanks to its sarcastic heading and lurid language ("animal killing ground", "bloody and confronting images from the Syrian warzone", "decapitated soldiers", "martyrs") and reference to terror organisations, is open to a degree of loose thinking.
8. Ms Barnett's second argument was that identifying the plaintiff as supporting a terrorist organisation does not mean that he is a terrorist and imputation (iv) was not capable of being conveyed.
9. Again, this is a matter for the jury, particularly in circumstances where the plaintiff is identified as someone whose Facebook profile photograph depicts him wearing camouflage, posing with a dead animal wearing sunglasses and carrying a bolt action gun with a precision scope and arranging for his children to be photographed with him while carrying a Hezbollah flag. Again, for the reasons explained by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd, these are matters for determination by the jury.

Costs

1. By reason of the plaintiff's concessions in relation to other matters not the subject of argument, the appropriate costs order is that the defendant pay half of the plaintiff's costs of the application today.

Orders 1. Grant leave to the plaintiff to file an amended statement of claim, such amendment to include the amendments agreed to in correspondence. 2. Defendant's objections as to imputation (iv) in each of the matters complained of dismissed; this imputation will go to the jury. 3. Amended Statement of Claim to be filed and served in 14 days. 4. Defence by 15 September 2016. 5. Plaintiff's Reply by 29 September 2016. 6. Matter listed in the Defamation List for further directions on Thursday 6 October 2016. 7. The defendant pay half of the plaintiff's costs of the application today. Annexure A - Daher v Nationwide News Pty Ltd - Matters Complained Of (2.22 MB, pdf)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 May 2018