Protect Ya Neck

Let’s take a look at the world of defamation, from a recently published decision of NSW District Court, in Massoud v Radio 2GB Sydney Pty Ltd [2021] NSWDC 336.

The dispute centres around publications made about former Channel 7 rugby league journalist Josh Massoud by various media organisations, including 2GB Radio.

Massoud was dismissed from his employment, following a workplace investigation into a phone exchange with a junior employee of Seven Queensland. Massoud had taken up with the employee after the premature publication of an exclusive, obtained by the rugby league reporter.

In the wake of news of an investigation, news outlets reported that Massoud had said to the employee that he would “slit” his throat and “shit down his neck”.

Mr Massoud argued that this was a misreporting of what he had said, imputing he was a bully and someone who threatens and intimidates his colleagues.

Instead, he argued he’d actually said said that if the junior employee weren’t so young Massoud would “rip (his) head off and shit down (his) throat”. 

Rather than the violent connotations of slitting a person’s throat, Massoud said his language was “colourful” and adapted from films (see Clint Eastwood’s “Heartbreak Ridge” and Stanley Kubrick’s “Full Metal Jacket”).   

Further, Massoud argued there was no threat because:

1.     the statement itself revealed that Mr Massoud did not intend to rip the employee’s head off;

2.     the act of ripping a person’s head off was an impossible task, whereas slitting a throat was easily done.

There is plenty to unpack in this decision, but we will take a look at the following select points. 

Loose Talk

The publications, alleged to be defamatory, were made about unproven allegations in the setting of a private employment dispute. It should go without saying that great caution should be applied when making public statements about matters, based on third party reports.

Justice Wigney in Chau v Fairfax Media Publications Pty Ltd [2019] FCA 185 said: 

As long ago as 1963, Lord Devlin warned, in the context of an appeal in a defamation action, that “[a] man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire … Loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded”.

The issue for the news publishers was whether they had been “sufficiently careful to talk about smoke rather than fire”.

“Loose talk” about investigations, allegations and suspicion can very easily convey the impression of guilt.

2GB Radio were found to have conveyed defamatory imputations, on the basis of “feeble attempts to portray the allegations as being merely allegations”.

In the Judge’s decision, reference was made to Ray Hadley of 2GB discussing unproven allegations against Mr Massoud, whilst asserting his “history of disgusting behaviour”.

Other news publishers were found to have sufficiently guarded their language, so as to avoid carrying defamatory imputations.

Where those defamatory imputations were conveyed, the question turned to whether any defences applied, to excuse their liability for defamation, which leads to our next point.

Substantive Truth

The media companies defended the matter on the basis that the defamatory imputations were true.

Massoud argued that the difference between “slitting a throat” and “ripping a head off” were sufficiently distinct and therefore, the defences of truth must fail.

Citing Sutherland v Stopes [1925] AC 47 at 79, Gibson DCJ noted that the defence of justification required substantial truth, rather than meticulous accuracy. 

Her Honour found that factual inaccuracies would not rob statements of the protection of justification, i.e a defence of truth would not be defeated by minor inaccuracies.

Gibson DCJ left little doubt about the factual distinctions in the following passage: 

I do not accept that “slit” and “rip off” are sufficiently (sic.) different for the defence to this imputation to fail. The difference between slitting a throat and ripping off a head is exactly the kind of example Lord Shaw of Dunfermline is talking about.

It is a distinction without a difference. Even if I were to accept Mr Molomby SC’s argument that slitting a throat is easily done, whereas ripping off a head is an impossible task, this would be at best a question of degree; both are still threats of violence. The additional threat of shitting down the plaintiff’s decapitated throat reinforces that this is a threat, not a promise, and that it is a conditional threat, designed to provoke fear.

It is perhaps unsurprising that Her Honour found the imputation that Mr Massoud was a bully, to be true.

Concerns Notice

While 2GB Radio successfully defended the proceedings, by pleading the truth of their public statements, they also pleaded a defence that Massoud had failed to accept a reasonable offer to make amends.

Uniform defamation legislation provides a framework for the early resolution of disputes through the issue of ‘concerns notices’ and offers to make amends. 

A party wishing to commence a proceeding in defamation is required to issue a ‘concerns notice’ setting out the defamatory material, imputations of concern, the harm caused to a person’s reputation and any serious financial loss caused.

Offer to Make Amends

In response, a publisher of defamatory material can make an offer to make amends.

Section 18 of the Defamation Act (Qld) and (NSW) provides a defence to an action if:

1.     The offer is made as soon as reasonably practicable after the publisher is given a concerns notice; and

2.     The publisher was ready, willing and able to carry out the terms of the offer; and

3.     In all the circumstances, the offer was reasonable.

2GB, in response to a concerns notice issued by Mr Massoud’s solicitors, offered to publish a correction to their publications (consistent with Massoud’s version of colourful language) and offered to pay reasonable legal costs.

Her Honour Gibson DCJ found that 2GB’s offer to make amends was a reasonable one and that Massoud’s insistence on an apology, without publication of the (arguably worse) words he actually said, was an unrealistic approach.

In those circumstances, it was found that the offer to make amends entitled 2GB to a complete defence of Massoud’s action.

Where does that leave us?

The Massoud decision offers some good lessons for both claimants and publishers in defamation proceedings:

1.     Go easy on the “loose talk”. Don’t make assertions of fact about things you did not see or hear. In other words, just because you saw smoke, doesn’t mean you saw the fire.  

2.     Courts won’t require perfection from defendants pleading truth. If the subject matter of the defamation is substantially true, minor discrepancies of fact will not defeat the defence.

3.     Accept all reasonable offers to make amends.

Here, overall the defence of truth was upheld to defeat the majority of Massoud’s claims. 

Splitting hairs between slitting throats or ripping heads off was not sufficiently different for Mr Massoud to succeed. We await an update as to whether an appeal is launched.