Former SBS newsreader wants parts of lawsuit over Hezbollah tweets to be struck out

Australia Broadcast Center

2 days ago

A legal row between a former SBS television newsreader and a prominent Israeli Australian over tweets during the Israel–Gaza war has been described by one camp as a case of free speech, and the other as a case of hate speech.
The lawsuit against Mary Kostakidis was launched earlier this year by Alon Cassuto, chief executive of the Zionist Federation of Australia, over comments and posts Ms Kostakidis shared on social media platform X, formerly known as Twitter.
The matter returned to the Federal Court in Adelaide today, where Ms Kostakidis's legal team sought to have elements of the case struck out — a move that was strongly opposed by lawyers for Mr Cassuto, an Australian-Israeli dual citizen.
In the legal application that triggered the action earlier this year, Mr Cassuto alleged that posts from Ms Kostakidis featuring comments from Hassan Nasrallah — the now deceased leader of Hezbollah, the Lebanese militant group designated by the Australian, the US, the UK and other governments as a terrorist organisation — on January 4 and 13 in 2024 breached the Racial Discrimination Act.
According to Mr Cassuto's application, the posts were in breach of the act because they were "reasonably likely in all the circumstances to offend, insult, humiliate and/or intimidate Australian Jews and/or Israelis in Australia".
The application noted the lawsuit was launched because, after a complaint was made to the Australian Human Rights Commission, the commission subsequently determined there "was no reasonable prospect of the matter being settled by conciliation".
Screenshots contained in the statement of claim show the posts in question, including one from January 4 where Ms Kostakidis added comments while reposting another tweet.
That post featured a video of Nasrallah, and a caption reporting that the Hezbollah leader had told the Israelis they will never be welcome in the region.
Ms Kostakidis's legal team including Stephen Keim SC applied to have elements of the case struck out, describing the posts as falling within the bounds of journalism.
"We argue that the reporting of statements by a well-known spokesperson for a party in a major regional conflict is an essential part of news reporting," Mr Keim said.
"This may involve reporting offensive statements, for example the widely-reported Access Hollywood tape of the current president of the United States, but no ordinary and reasonable person would be offended by such news reports.
"The speech reported in the subject posts were widely regarded as newsworthy … and in reporting the speech, the respondent was acting in accord with orthodox judgements and actions concerning publication."
Mr Heim argued that the extracts from Nasrallah's speeches singled out by Mr Cassuto's legal team were not anti-Semitic and were "incapable" of meeting legal definitions of anti-Semitism.
"Comment on the direction of the conflict is not a criticism of Jews or Israelis generally," he said.
Mr Heim said Ms Kostakidis's comment was similarly "directed to the Israeli government and the state of Israel, and not a criticism of Jewish people in any way", and later drew the following analogy:
"At Bledisloe Cup time, strong feelings arise between Australians and New Zealanders, and to criticise the rugby team of New Zealand is not a criticism of New Zealanders completely."
But barrister Michael Borsky KC, for Mr Cassuto, argued that sharing the posts did not amount to "a straightforward news report", which would make the defence of a "fair and accurate report" hard to prove.
"Our case is that although Mr Kostakidis used to be a newsreader, it's not a straightforward news report, her sharing these posts — particularly with the commentary which we allege is a form of endorsement," he said.
Mr Borsky argued against the case being struck out, arguing that it should proceed to trial.
He said while he accepted that "to criticise Israel or the Israeli government is not necessarily anti-Semitic", criticism could sometimes still amount to anti-Semitism.
"There is the potential for an act or a statement to be both a criticism of Israel and anti-Semitic," he said.
"Where that line is drawn in relation to a particular statement or a particular act is a difficult and important question, which would be determined following consideration of evidence."
Mr Borsky further argued that other posts by Ms Kostakidis included equations of Zionism with Nazism, accusations that Israel is a "supremacist apartheid state" and "anti-Semitic conspiracy theories".
"Zionism is the support for Jewish people having a home in the community of their ancestral homeland," he said.
"Equating Zionism with Nazism is a particularly offensive charge, deliberately selected by many anti-Semites for that very reason, for the very reason that it accuses the victims of the holocaust with committing that crime."
Federal Court justice Stephen McDonald reserved his judgement, and said it would not "necessarily be a quick turnaround".
Before the hearing on Tuesday, Ms Kostakidis said the case "raises important questions about the limits on free speech".
"I'm a strong believer in freedom of the press and the freedom of political expression," she said.
"I will defend my right to report news and the right of every journalist to do so and the right of every Australian to engage in public debate."
Outside court on Tuesday, Mr Cassuto said the case "is not about free speech, it is about hate speech".
"It's deeply offensive and irresponsible when someone with a platform and a following like Mary Kostakidis shares hate speech and shares the calls of a prescribed terrorist organisation," he said.
"We've all seen how hatred starts with words and ends with violence.
"For the sake of every Australian we have to stand up against racial hatred no matter who is being targeted and no matter who is spreading it."