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?

That justifies her position? Threats are usually conditional; Massoud's statement was conditional; therefore, his statement was a threat? Apparently any declarative sentence that contains the conditional 'if' is a threat.

Also, she quotes from a 2004 case, "the effect which the use of threatening words may provoke in the hearer is fear: fear that the threat of violence will be carried into effect." But hold on, we know violence won't be carried out as it says so in the first seven words of the very sentence.

In contrast to that precedent, Massoud's counsel brought up a classic 1669 Common Law case of Tuberville v Savage, where it was held that a threat cannot be a threat when it expressly stipulates it won't be carried out, even if the alleged perpetrator is laying his hand upon his sword when speaking. In response to that, Judge Gibson referred to a 1997 case addressing Tuberville, bizarrely claiming that, despite the nullifying condition, merely placing one's hand on one's sword can be equated to pointing the appearance of a gun at a victim, or kidnapping them and driving dangerously.

The second flaw appears to be how we should comprehend that most graphic of phrases, "I'd … rip your head off and s..t down your throat."

Here, the question to be asked is does a reasonable person (known colloquially in British law as 'the man on the Clapham omnibus') fear a threat that physically cannot be carried out? If we are told by a madman that he will kidnap us, secure us in a rocket ship and fire us off towards the sun, do we feel threatened? Even absent of the condition, would the receiver of that phone call have really arranged to rig up a harness over his head and under his armpits to prevent dislocation by his angry colleague? As statute law states, to be the crime of assault, a threat to kill must be made "in circumstances in which a reasonable person would fear that the threat would be carried out." – Crimes Act 1900 ACT s30(b)(ii)

Perhaps what the judge failed to consider was that Massoud may well have used colourful vitriolic language, not to instil fear in his antagonist, but instead to express his hatred and contempt.

A Hollywood film for the judge's edification could have been The People vs Larry Flynt of 1996, which told the true story of the defamation case of the Reverend Jerry Falwell suing Hustler Magazine, owned by self styed pornographer, Larry Flynt. Flynt had to defend himself against the libel charges that his magazine stated Falwell took his mother to his high school prom as his date, and subsequently had sex with her there in the men's toilets.

One might think rather a tough gig for whomever had to defend Flynt.

Yet Falwell lost the case in a unanimous decision when the US Supreme Court held that a libel has always to be believable. The justices held that the claim in Hustler was so ridiculous that no reasonably minded person would have believed the charge was true and that it was only said to ridicule / annoy the reverend.

The phrase Massoud chose to use on the day, "I'd … rip your head off and s..t down your throat.", comes from popular culture. First in a 1986 film Stand by Me where a child says it to an adult who is taunting him, and second (amongst still possible others) in the 1986 Clint Eastwood, profanity laden, film, Heartbreak Ridge, where Private 'Swede' Johanson says it to his commanding Gunnery Sergeant. In neither film are the speakers portrayed as bad characters.

In New South Wales defamation cases can be decided by a judge or a jury. One wonder how a jury chosen from 'men and women on the Clapham omnibus' would have interpreted the conditional clause beginning Massoud's alleged threat, or if they would had viewed his highly graphic terminology as, like the [possibly] chauffer driven Judge Gibson, "a repugnant threat", or instead merely as colourful abusive vitriol so as to express his contempt for someone who had behaved negligently.

Gibson gave an interview to a Sydney Morning Herald reporter in 2015, over lunch at the NSW Art Gallery restaurant. Over the pan-fried barramundi with pine mushrooms, artichokes and onion, she declared that what first got her interested in defamation law as a child was a well-known 1959 UK court case of gay entertainer Liberace suing the Daily Mirror because it had the temerity to imply he was homosexual. It is interesting to note that, above all others, she found this case "fantastic" and motivation to become a barrister, despite the minor detail of the travesty of justice in that the newspaper lost and had to pay out the highest award for libel to date.

Joshua Massoud may well not be a pleasant person to share an office with. People claimed that in his interactions with others he could be a bully or otherwise ill-mannered. That could well be so, but there is a big difference between having to work at an adjacent desk to someone you would not want to have an after-hours drink with, and someone known to threaten to slit your throat if you do wrong by him. Having proven boorish behaviour does not justify the media extrapolating that to declare you also exhibit criminal behaviour.