In November 2021 the Federal Court found in the matter of Dutton v Bazzi [2021] FCA 1474 that Shane Bazzi had published a tweet which defamed MP Peter Dutton (now Leader of the Opposition). Mr Bazzi was unsuccessful in arguing that he was exercising fair comment and honest opinion by publishing the (now deleted) tweet, and was accordingly ordered to pay $35,000.00 in damages to Mr Dutton.

In December 2021, Mr Bazzi appealed the decision on the basis that Justice White had made an error in the primary judgment by making the determination that his tweet carried the meaning, or imputation, that Mr Dutton ‘excuses rape’.

On appeal, Mr Bazzi’s legal representatives argued that the tweet had been considered on an isolated basis, when it ought to have been read alongside the contents of the relevant Guardian article, a link to which was contained within the tweet itself.

In particular, the appellant contended that the ordinary reader would have clicked on the link and subsequently reviewed the Guardian article after having read the tweet. From here, the ordinary reader would be able to discern between the notion that Mr Dutton ‘excuses rape’, and the contents of the article which referred to ‘scepticisms’ held by Mr Dutton with respect to allegations of rape made by refugees on Nauru.

On Tuesday 17 May 2022, the Full Court of the Federal Court (comprising of Justices Rares, Rangiah and Wigney) overturned the preliminary decision of Justice White. In the reasons for judgment in Bazzi v Dutton [2022] FCAFC 84, the bench found that the tweet in question did not, in fact, carry the relevant defamatory imputations, a decision in line with the arguments led by the appellant, Mr Bazzi.

Although the judiciary agreed that the tweet may have been ‘offensive and derogatory’, they noted that it did not extend so far as to be defamatory. Further, they found that Justice White had made an error by failing to explain how the ordinary reader would have understood the tweet as conveying the defamatory imputations. The Full Court expressly noted that the ‘meaning his Honour found for the word “apologist” was not that of an excuser but of a defender’.

As a result, the primary judgment was set aside and the proceedings dismissed. The judiciary will shortly consider the question of costs following submissions made by both parties in circumstances where Mr Bazzi raised crowdfunding to assist in the payment of his legal fees.

Paired with the recent and proposed amendments to the defamation legislative framework, the outcome of this appeal confirms the movement towards higher thresholds for plaintiffs seeking damages in defamation applications in our ever-evolving and dynamic online age.