NSW Police Commissioner Andrew Scipione

A Sydney Muslim man who was present at the Hyde Park protests sparked by the release of anti-Islam film Innocence of Muslims secured a $100,000 defamation payout from The Daily Telegraph on Friday, as a jury found an image of him in the paper implied he had been part of an “angry mob” that had taken part in a “riot”.

Hamza Cheikho was present during the September 2012 protests, which turned violent. But evidence accepted by NSW Supreme Court justice Lucy McCallum showed he’d been trying to stop violence, at one point captured on video trying to hold people back. McCallum said she had been persuaded Cheikho was “one of a group of protesters seeking to discourage violence rather than condoning or participating in it”.

In the Tele, on September 19, 2012, Cheikho was featured in front-page splash, which prominently pictured 15 images of those at the protest. The headline was “Faces of Rage”. The rest of the story said the faces shown were photographed “during the protest that turned ugly in the heart of Sydney on Saturday — and police want to talk to them”:

“NSW Police Commissioner Andrew Scipione last night urged these men to come forward with any information they may have about who was involved in the violence, so each can be either cleared or ‘held accountable’ for their actions.”

During the case News Corp called in no less a figure than Scipione himself to testify. The defence also argued any damages against the paper should be mitigated because Cheikho was a “Muslim extremist”.

The paper’s lawyers said Scipione had told then-editor Paul Whittaker that it would be helpful if the media could publish images of the protests, as police were keen to speak to those who had participated in the unauthorised public gathering, at which nine people had been arrested. Scipione confirmed this in his testimony.

“By way of context we on that very day sought assistance from all of the media in Sydney … with a view to getting as many images as we could that had been gathered by reporters and by cameramen and photographers on the day,” Scipione said. He added that police “almost every day” gave material such as photographs and video to the media with the intention of giving it a wider airing, which can help identify the subjects. He said all those in the protest had been of interest to the police — even if they hadn’t been involved in criminal acts, they could have served as witnesses.

News Corp argued that the publication of the images was in the public interest and of benefit to the police. But McCallum rejected a qualified privilege defence. Police weren’t seeking to identify any particular individual, she said, and hadn’t approached the media directly to seek help (the judgement said the Tele had contacted police, rather than the other way round).

In awarding damages, McCallum said the prominence of the article and image featuring Cheikho could “scarcely have been greater”. “He would have been easily recognisable by anyone who knew his appearance,” she said. His relative youth (he was 19 at the time) also added to his vulnerability, the judgment states.

While it wasn’t in doubt that Cheikho had participated in the protest, conduct was “not homogeneous”, with some protesters gathering peacefully, and others being more aggressive. “[At one] point there were acts of violence against police and the conduct of some of the protesters plainly amounted to what in legal terms would be called riot or affray, but there is no suggestion that Cheikho was involved in that conduct,” the judgment states.

To mitigate damages, News Corp’s lawyers relied on a range of evidence that argued Cheikho was a “Muslim extremist” and “a sinister and dangerous person”. Evidence for this included a video of him chanting in response to inflammatory speeches, an interview he gave to the ABC where he said those who insult the Prophet Muhammad should be beheaded (Cheikho argued the video had mangled his quotes, and that he had merely said it was Islamic law that people who insulted the Prophet should be beheaded), and claims that Cheikho was “associated with” Australian Islamic State fighter Khaled Sharrouf.

But McCallum said she was “not persuaded” by many of these claims, adding that she has a “more benign” view of Cheikho. “Protest is the resort of the exasperated. From the Boston Tea Party of 1773 to the Suffragettes to the thousands of men who took to the beaches of Sydney in 1907 in feminine dress to protest the proposed introduction of an ordinance regulating swimwear for men, protesters have used assemblies both lawful and unlawful to achieve a change of ideas,” the judgment states. “The fact that large numbers of Muslims felt free to express their devotion to their faith with such passion is a mark of the health of our democracy, not a threat to it.”

Cheikho, she added, “presents as a thoughtful young man deeply engaged with the issues that concern his generation and his faith”. “I do not share his appetite for news of shocking acts, but I do not condemn it and, more importantly, I do not think it diminishes the worth of his reputation.”

News Corp also claimed Cheikho had lied to the court, both about his political views and about his participation in chants at the protest such as “Obama, Obama, we love Osama”. McCallum said that while she rejected some parts of Cheikho’s testimony, she wouldn’t classify it as a “massive deception” to the court. “In this context I have regard, again, to his youth. I think in hindsight he could scarcely believe that he would say such a thing and he could not bring himself to accept that he did, even in the face of relatively clear video evidence.”

Cheikho had requested the trial take place without a jury, citing the “overwhelming emotional and persistent prejudice” against Muslims in the community. McCallum refused this. Cheikho also sued about three other articles, but the jury either found the articles did not convey the imputations his lawyers claimed they did, or found News Corp had a defence of honest opinion.

Peter Fray

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