Alex Greenwich’s defamation win against Mark Latham shows political spite is not above the law

Independent Sydney MP Alex Greenwich has been awarded $140,000 in his defamation suit against One Nation New South Wales leader Mark Latham over a homophobic tweet.

Latham posted the tweet in March 2023 after Greenwich was quoted in the media calling him a “disgusting human being”. This comment about the former federal Labor leader occurred in the aftermath of a violent confrontation involving LGBT protesters outside a church where Latham was scheduled to speak.

Latham hit back with a graphic and grossly homophobic reply. He tweeted: “Disgusting? How does that compare with … [sexual activity described in offensive terms]”, which Greenwich’s counsel described as “revolting”.

Justice David O’Callaghan is the latest in a line of judges in the past 12 months who have been called on to work through the intricacies of the law of defamation, its requirements and defences.

He was required to weigh up this verbal thrust and parry between two well-known political opponents who happen to be at different ends of the political spectrum and determine whether a claim in defamation had been established.

Such sparring should be expected in the tough world of politics. But, in this instance, had Latham’s slight against his antagonist gone too far? Or should the law defend his right to express his opinions freely, however uncomfortable they may be to his target?

This requires a delicate balancing act.

How was the case decided?

Section 10A(1) of the Defamation Act (NSW) provides: “It is an element […] [of] defamation that the publication of defamatory matter about a person has caused, or is likely to cause, serious harm to the reputation of the person.”

This means Greenwich was required to prove that the original tweet from Latham, and Latham’s further comments reported in a Daily Telegraph article, carried the imputation that he (Greenwich) was “a disgusting human being who goes into schools to groom children to become homosexual” and was therefore not a fit and proper person to be a member of the NSW parliament.

Counsel for Latham argued the tweet and article would be unlikely to cause people to think less of Greenwich. The judge disagreed. The primary tweet, he said, conveyed more than Latham’s own sense of disgust about homosexual sex. The implication was that Greenwich himself engages in “disgusting” sexual activities.

Twitter recorded at least 6,171 “views” of the primary tweet prior to the time Latham deleted it. But a television journalist reposted the primary tweet, after which it was reportedly viewed more than 654,000 times. The result was a barrage of homophobic messages online that were supportive of Latham’s comments. Justice O’Callaghan commented:

One might be forgiven for being lost for words to characterise many of the tweets and comments. Counsel opted for “despicable” at one point, but that is barely to do justice to the hate-filled venom that was unleashed.

The judge concluded that the tweet had not placed Greenwich’s parliamentary career in jeopardy. But he was satisfied the initial tweet and the later newspaper comments were defamatory, and were likely to cause serious harm to the independent MP.

He then turned to whether Latham’s counsel could establish a defence. There are a range of defences in the law of defamation. Latham claimed two of them: the statutory defence of honest opinion, and the common law defence known colloquially as “reply to attack”. The first defence was quickly dismissed. Any such honest opinion needs to be in the public interest and based in truth. There was no evidence of either.

The defence of “reply to attack” enables those who have been criticised (remember, Latham was reacting to having been publicly maligned) to vindicate themselves in the eyes of the public. But this defence is defeated if it is disproportionate to the initial “attack”, or untrue and actuated by malice. The judge concluded that Latham’s reply

was personal and not germane to any matter of politics contained in the attack. It was neither proportionate nor commensurate.

The reply was also untrue because, as his counsel admitted at the hearing, Latham did not know anything about Greenwich’s private sexual life. The judge found that it was actuated by malice. So this defence also failed.

The judge found for Greenwich.

He awarded damages of $100,000, with an additional $40,000 in “aggravated” damages by virtue of the way in which Latham had “rubbed salt in the wound” after the initial tweet.

What is the lesson from this case?

Is it that free speech is now more vulnerable to censorship by those with thin skins? Or that robust political debate is now beholden to woke curtailment?

No. It is neither of these things. What has been constrained is not contentious public discourse, but rather unbridled political spite. The initial vindictive riposte was found by the judge to be gratuitous and defamatory. It then unleashed an online chain reaction of highly offensive public invective aimed at an openly gay man. The law is there to protect people who find themselves in vulnerable positions.

Politicians can best serve the public when they are permitted to work in a safe and respectful environment. This judgement is a reminder that the law of defamation has a key role to play in bringing that about.