When is a threat not a threat?

Last week the result of an Australian defamation court case was reported where a former Channel 7 sports reporter had taken offence at some media reports declaring he had threatened to slit the throat of a workplace colleague. To be publicly described as a person who threatens such an act, whether the threat was carried out, is something hardly likely to enhance one's career prospects or otherwise social standing, and as such a reasonable motive to seek redress in civil action for libel.

In the court case for defamation against five publishers, Judge Judith Gibson held that while some publications described the reporting as only allegations, others went further and effectively took it as fact that such threats were made. Phrases bandied about such as, "making graphic threats to kill a Channel 7 colleague" and "wanting to slit some bloke's throat" and "threatening a young colleague with violence" were held to have carried the imputation that his actions were unquestionably defamatory.

There was just one problem regarding the plaintiff, Joshua Massoud, who unquestionably did have a barely controllable temper. The words he actually said were somewhat different. What he said in the heated phone call, and what has not been challenged, were the words,

"If you weren't so young and inexperienced, I'd probably come up there and rip your head off and shit down your throat."

So, what's the difference?

Well, his reputation and future career prospects for one thing. To make a serious threat to kill someone is by law, a crime, a crime known as assault or common assault. Whereas to swear and abuse someone, using colourful and hyperbolic graphic comments, may justifiably lose you your job, it still does not go that far as to make you as a criminal.

Unfortunately for the plaintiff, to Judge Gibson of the NSW District Court the two different versions of what happened held "a distinction without a difference."

To her credit, Judge Gibson went to great lengths in her judgement to explain her numerous decisions, which covered the published wording of all the different defendants in the case and what, in the eyes of the ordinary person, would be realistically interpreted by the words stated in their relevant contexts.

However, in comparing Massound's actual words with the unquestionable crime of "threatening a colleague with violence" her reasoning did appear wanting.

The most obvious flaw in her argument appeared with the very first word of the plaintiff's, much misquoted, sentence spoken in anger, "If".

This was not the first word of a conditional clause informing the recipient of what money had to be paid to prevent his arm being broken; or that his employment would be terminated unless he became more punctual; but in fact of a clause informing him that nothing would be happening.

Incredibly, this appeared to be beyond the comprehension of her honour. She addressed the argument raised by saying "It is in the very nature of threats that they are usually made conditionally…". That's it?