Michelle Grattan, University of Canberra

Federal Treasurer Joe Hockey has been awarded A$200,000 in damages for a partial win in his defamation case against Fairfax Media.

The damages were given for a Sydney Morning Herald poster and two tweets from The Age, but Hockey’s case against the articles themselves was dismissed.

Running under the headline “Treasurer for Sale” Fairfax Media reported in May 2014 that Hockey was offering “privileged access” to business people and lobbyists in returns for tens of thousands of dollars in donations to the Liberal party through a secretive fundraising body.

The reports ran in the SMH and The Age, as well as in the Canberra Times (which used another headline).

Justice Richard White of the Federal Court awarded $120,000 for the poster and $80,000 for the tweets.

The SMH poster said “Treasurer for Sale”, and the tweets included those words.

Hockey’s counsel had argued that the tweets should be considered as a “discrete publication and its defamatory meaning determined separately in the same way that the meaning of a poster for a newspaper article is considered separately from the article to which it relates”.

The Age’s Twitter followers saw the bare tweet and only saw the article if they clicked on the hyperlink.

In his judgment, Justice White said he accepted this submission.

Counsel referred to the evidence that, as at 5 May 2014, The Age had about 280,000 followers on its Twitter account and that some 789 only of these had that day downloaded the article headed “Treasurer for Sale: Joe Hockey offers privileged access”. This meant, counsel submitted, that of those who received the tweet, some 279,000 had not gone on to read the hyperlinked article, making it inappropriate to regard the tweet and the article as one publication.

Although the article contained the headline, “Treasurer for Sale”, Justice White found it was in context and was “reporting on a method by which access to Mr Hockey in his important role as Treasurer could be obtained by the payment of significant sums, but not that Mr Hockey himself, or his judgment or discretion, could be bought”.

But Justice White said:

I consider that the poster in this case would have been understood by ordinary reasonable readers as conveying assertions of fact, in particular, that the SMH had carried out an investigation which had revealed matters indicating that Mr Hockey was “for sale” and that that day’s edition contained a report of what the investigation had uncovered. There was nothing in the poster to indicate that what was “for sale” was a form of access to Mr Hockey in the context of a means of commonly accepted political fundraising.

The judge said that SMH editor-in-chief Darren Goodsir, who wrote the “Treasurer For Sale” headline was “motivated by his animus towards Mr Hockey”. Goodsir, who had a run in with Hockey earlier in the year, “sought a headline which would be hurtful of, or damaging to, Mr Hockey”.

“Mr Goodsir had lost objectivity. If it was not for his desire to get back at Mr Hockey, I consider it probable that he would have selected a less provocative headline,” the judge said.

Hockey argued that the reporting conveyed the impression that he was corrupt. The judge said he accepted the submission from Hockey’s counsel “that a defamatory allegation of corruption by a politician is a serious defamation” and the damages should reflect that.

But, Justice White noted that the defamatory imputations in this case were not the most serious defamation of this kind – allegations that he had taken bribes or been prepared to take bribes would have been more serious.

The judge said there was some arbitrariness in the damages. The awards could not compensate Hockey for all the hurt he had experienced “because much of it results from publications which I have found not to be defamatory”, Justice White said.

“Mr Hockey would have suffered that hurt and any loss of reputation involved independently of the publication of the SMH poster and the first two Twitter matters.”

Michelle Grattan is Professorial Fellow at University of Canberra.

This article was originally published on The Conversation.
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