Mark Latham Osman Faruqi

Mark Latham could shell out more than $100,000 after he settled the defamation case brought against him by ABC Life editor Osman Faruqi, five months before the matter was set to go to trial.

Latham, recently appointed NSW leader of One Nation, had accused Faruqi of “anti-white racism” in his online commentary show Mark Latham’s Outsiders. Latham suggested this contributed to Islamist terrorism. Faruqi sued in October last year, saying the comments portrayed him as knowingly assisting terrorists who want to kill Australians. Faruqi’s lawyers Maurice Blackburn put out a statement saying Latham’s bill, including costs and damages, could be in excess of $100,000.

MinterEllison law firm senior associate Sam White told Crikey that the damages (which he estimated to be about $30,000) were relatively small, but that reflected the small audience Latham’s comments would have reached — the comments were published on his website, as well as YouTube, Facebook and the website of his former publisher The Rebel.

“When you’re looking at any settlement, the two obvious factors you need to weigh up are the seriousness of what was said about someone and the extent to which that was broadcast,” White said. “In this case, the publication was a lot more limited than having his face on the front of The Sydney Morning Herald or the Telegraph.”

White said that Latham’s costs would likely be more than Faruqi’s, which is usually the case for defendants in defamation cases. “The main reason is that in defamation cases the burden is on the defendant to prove that a matter is true,” he said.

Only about one in 10 defamation cases make it to trial, depending on the defendant, White said. “Costs can spiral out of control — the deeper you get into it the costs become the significant impediment to resolving a case.” 

Costs will also be higher because of Latham’s initial defence, which was struck out entirely before he was allowed to submit another. Justice Michael Wigney said the 76-page defence was an “extraordinary document“. “In order to address Mr Faruqi’s strike out application, it is necessary to attempt to come to grips with it. That is no mean feat,” Wigney said in his decision.

Latham had initially raised nearly all the defences available to him, but in his second defence, said the defamatory imputations that Faruqi claimed would not be made out by a reasonable viewer. The actual costs will be determined by the court.

In a statement on Monday afternoon, Faruqi said he was pleased the case had been resolved:

I hope that this settlement sends a message to other members of the community that while robust debate is part of a healthy democracy, using your platform to harm the reputation of individuals comes at a cost. I strongly believe that our community would be better off if Australians from all backgrounds were able to participate in public life while feeling confident that they won’t be publicly denigrated.

On Twitter, Latham yesterday said the case was an example of “lawfare”, and thanked his supporters: “I would like to thank the many people who last year assisted with Rebel Media crowdfunding for Faruqi defamation case. Due to Federal Court ruling a few months ago, it’s basically a win for lawyers, as lawfare always tends to be.”

Latham went on to plug his NSW upper house candidacy, saying he hoped he’d be elected to somewhere “where thankfully, the left are yet to apply their lawfare and outrage/censorship tactics. Please support free speech by supporting One Nation.”

What do you think of the settlement? Do you think journalists should employ defamation law? Send your comments to boss@crikey.com.au.