The headline of the Sunday Telegraph article was unequivocal: “Bowen: We must protect Hamas”.
James Campbell’s piece reported the International Court of Justice’s emergency ruling that ordered Israel to cease its offensive against Rafah and asserted that the Australian government was backing the ICJ. In keeping with the Murdoch media’s current approach to international rules-based order, Campbell was critical of this stance.
Energy Minister Chris Bowen took note, tweeting that the headline was ”offensive, inaccurate and defamatory, especially to the people of Rafah who deserve protection. The people of Rafah are not Hamas.”
Half an hour later, the newspaper’s editor Mick Carroll posted a reply to Bowen’s tweet, saying the headline was “incorrect … it should have read: ‘Bowen: We must protect Rafah’”. Carroll apologised to Bowen and blamed the headline on a “subediting error”.
Ah, the old subediting error, presumably a typo in this case. Headlines are generally written by subeditors, and it’s conceivable that whichever lowly minion or AI bot wrote this one did make an honest mistake, typing Hamas while intending Rafah. Conceivable, but wow it’s a stretch.
News Corp deserves no benefit of the doubt either way, given both its general editorial recklessness and its specific disingenuousness on the subject of Israel and Gaza. It wouldn’t have surprised anyone if the Telegraph had doubled down instead of backtracking.
Bowen has been urged by many to sue for defamation. Presumably he won’t bother, but if he did he could write his own ticket. The headline was worst-case libel, explicitly accusing him of aligning himself with a terrorist organisation and excusing its outrages.
Three of the defences I’m most often offered by clients who are being threatened with defamation action are “It was a mistake”, “But I took it down” and “I didn’t mean it that way”. None of them matter.
Defamation, alone among tortious causes of action, is one of strict liability. It doesn’t matter why you published the defamatory words or images, what you meant them to convey or whether you deleted them soon afterwards. There is no defence of “oops sorry”.
For reasons rooted in the historical purpose of defamation law — essentially, the protection of the reputations of powerful men — this law was designed to prioritise the effect of what’s been done, rather than its purpose or motivation.
A similar situation arose recently when Seven Network wrongly identified Benjamin Cohen as the perpetrator of the mass stabbing attack in Bondi Junction. The mistake on that occasion was relying on what some random had posted on social media, and taking no steps to check the facts before piling on.
Seven settled with Cohen very quickly, on undisclosed terms. It had no defence and would have lost if he’d sued, although in the digital age there is a real question about how much reputational damage a person in his position would have suffered, because the correction of Seven’s error spread virally way faster and further than the error itself. That’s not to Seven’s credit, but defamation damages are meant to compensate for the harm actually done.
Likewise, the Telegraph would have no defence. However, an interesting question would arise, to which the exact circumstances that caused it to label Bowen a Hamas sympathiser would be very relevant.
One difference between Cohen’s and Bowen’s cases is that the Telegraph was published in print. It therefore has a permanence that online publication — once corrected — doesn’t. Bowen could make a good case that, notwithstanding the speed of the editor’s acknowledgement of the error and apology, many readers would have seen the slur but not its correction (or paid the latter little regard).
On top of hurt feelings, that could translate into a big general damages verdict (this category of damages is currently capped at $459,000).
The court can also award aggravated damages for defamation, and these are uncapped. Their purpose is not (technically) to punish the defamer, but to reflect disapprobation of the behaviour that aggravated the harm. This can include things like failing to apologise, not taking down an obviously defamatory publication, and conduct that caused the defamation to spread more widely.
The Telegraph would say look, it was an honest mistake by a minion, we recognised it, corrected it as best we could and apologised. We should get a medal, not a bill.
The other way of looking at it is this: that this happened at all speaks to an outrageously slack editorial process, and has to be seen in the full context of that publisher’s reckless approach to levelling wild accusations without moderation, especially on this specific subject matter. Arguably, what happened would not have happened, and could not have happened, at any media organisation other than News Corp.
Considered properly, the outrage perpetrated on Chris Bowen by News Corp was a predictable consequence of the sense of responsibility it feels as a news publisher. That is to say, none. If he chose to hold the company to account for this, it would appropriately be footing a massive bill.
