The defence minister, Peter Dutton, has begun issuing defamation threats to social media users for claiming he is a rape apologist.
Dutton has decided to take a more aggressive stance against false and defamatory statements posted about him online, and has already extracted an apology from the Greens senator Larissa Waters.
In late March, Waters apologised for describing the then home affairs minister as an inhuman, sexist rape apologist for Duttons comments characterising Brittany Higgins rape allegation as she said, he said.
Waters accepted that there was no basis for her suggestion that Dutton sought to conceal and dismiss reports of rape, and that he has no sympathy for victims and that those imputations were false.
Apology to Peter Dutton On 25 February 2021 I published a media release on my website, posted on my Twitter account, and made in the course of a press conference false and defamatory statements that Peter Dutton is a rape apologist, that he has sought to conceal and dismiss 1/2
— Larissa Waters (@larissawaters) March 24, 2021
In late February, social media users posting in solidarity with Waters briefly got #DuttonisaRapeApologist trending on Twitter, with several citing the he said, she said comment.
Guardian Australia is aware of at least one social media user who has received legal letters demanding they delete tweets containing similar accusations that Dutton is a rape apologist and asking for a public apology of at least 28 days duration.
Guardian Australia is not suggesting there is any truth in any of the comments that Peter Dutton is taking action over.
Michael Bradley, the managing partner of Marque Lawyers, said he had been contacted by one man who had received a legal letter from Baker McKenzie ordering him to take down a tweet accusing Dutton of being a rape apologist.
Hes an unemployed dude hes no one special, Bradley told Guardian Australia. He questioned why one earth the minister of defence has decided to occupy himself with randoms on Twitter.
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In a statement, OBrien Criminal & Civil Solicitors said they have been engaged in relation to a defamation concerns notice served on an individual as a result of a tweet about Peter Dutton.
We are not prepared, at this time, to discuss the specific details of the particular case, they said.
We are, however, firmly of the general view that politicians should not be wielding defamation laws as a sword to cut down the opinions and criticisms of individuals.
People should have a broad freedom to criticise and express opinions about politicians without fear of reprisal, and politicians should have thick skins.
OBrien Solicitors argued defamation should be reserved for cases of real risk of genuine damage to reputation.
That is not the case here. This was an expression of opinion on Twitter, a social media platform known for its freewheeling and informal banter in respect of matters of public interest, to an audience of no more than a few hundred people.
Asked for advice to social media users, Bradley said its generally good advice not to defame others by making false statements even if they are politicians.
It does point to the continuing problem in defamation law, that there is no defence available that the person allegedly defamed is a public figure.
The problem with Twitter is distinguishing between facts and opinion is a lot more blurry in such a short form environment.
Opinions are defensible, but misstatements of fact are not. Social media is relatively dangerous and this is a classic example, where something is stated as fact but is actually an opinion.
In late March, Dutton explained his new aggressive stance, warning he had had enough of social media abuse. Dutton told 2GB radio that although he let a lot go through to the keeper there has to be a floor, there needs to be a red line.
Im not going to be defamed in that way, and people should know that if they want to do that, theres a price to pay for it, he said.
Some of these people who are trending on Twitter or have the anonymity of different Twitter accounts: theyre out there putting all these statements and tweets that are frankly defamatory (and) Im going to start to pick out some of them to sue.
Duttons flurry of defamation threats comes as the New South Wales government released a discussion paper for the second stage of proposed defamation law reform.
The first phase of reforms was agreed by states and territories in 2019 and was set to commence in July in NSW, South Australia and Victoria from mid-year.
The changes include a new serious harm threshold for defamation claims and a public interest defence.
In the discussion paper, the NSW government asked stakeholders to consider whether internet intermediaries should be liable in defamation for publishing third-party content, and whether the defence of absolute privilege needed to be extended to reports of alleged criminal or workplace misconduct.
The paper questioned whether fear of being sued for defamation was deterring victims and witnesses of crimes, or victims of sexual harassment from coming forward.
This has received public attention in the context of the #MeToo movement, it said.
The discussion paper noted that Australias sex discrimination commissioner, Kate Jenkins, found in her Respect@Work report that sexual harassment is pervasive in Australian workplaces, and that defamation laws were discouraging the disclosure of this behaviour.
It is possible that an extension of absolute privilege to these circumstances could reduce this chilling effect.
However, the paper warned that because absolute privilege removes the right of a plaintiff to seek a remedy for damage to reputation it would need to accompanied by strong protection against the making of false or malicious reports or complaints.
Guardian Australia contacted Peter Dutton for comment.

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