Federal Court Justice Stephen McDonald ruled on October 9 that the Zionist Federation of Australia (ZFA) could proceed with its lawsuit against journalist Mary Kostakidis.
The ZFA’s case was lodged in April. Kostakidis’ defence team sought to have the case struck out in July, due to the baseless claim that Kostakidis had been “antisemitic” in her posts on X.
The accusation against Kostakidis, who has been vocal in her criticism of reporting on the Gaza genocide, was initially lodged with the Australian Human Rights Commission in July last year, with the subsequent conciliation process having broken down. ZFA chief executive Alon Cassuto then took the matter to the courts.
Cassuto alleges Kostakidis had been disseminating antisemitic posts on X, with the focus on one that involved Kostakidis reposting a clip of the late Hezbollah leader Hassan Nasrallah condemning Israel.
In addition to her original post, Kostakidis wrote that Israel, which was conducting a genocide in Gaza and launching attacks on Lebanon, was getting its “own medicine”.
When the charge against Kostakidis was laid, the moral panic around alleged “antisemitism” and the pursuit of transgressors, was in its early days. Journalist Antoinette Latouff, writer Randa Abdel-Fatah and linguist Dr Nick Riemer are some of the Zionists’ targets.
Last week, McDonald found that the case against Kostakidis could not be dropped over the defence’s assertion that a journalist cannot be taken to have acted out of racial or religious prejudice as a true statement of fact, as they may have such a bias. He said journalists could act on the basis of prejudice and therefore the charge needs to be determined in a trial.
The ZFA lodged its action on March 31. The complaint is the same as Cassuto lodged with the AHRC on July 14 last year.
The ZFA wants to silence Kostakidis because of her criticism of Israel’s war in Gaza. Cassuto alleges that Kostakidis breached Section 18C of the Racial Discrimination Act 1975 by posting footage of Nasrallah warning Israelis they were not safe in the region.
Section 18C contains a law that makes it illegal to publicly act in a way that’s “reasonably likely” to offend, insult, humiliate or intimidate a person or a group based on their “race, colour or national or ethnic origin”.
The ZFA wants the court to rule this section also captures a religious group. This law is controversial as the Coalition has sought to weaken it, due to its broad reach.
While MacDonald ruled the case should not be struck out, he argued that some of the ZFA’s assertions about the impact of Kostakidis’ posting should be revised. It has until October 31 to reformulate its argument.
MacDonald rejected the defence claim that the ZFA had failed to indicate “a reasonable cause of action”, which would allow the court to strike it out. This would have prevented the Zionist’s civil suit against Kostakidis which, as it stands, serves to smear Kostakidis’ name, wasting her time as well as costing her dearly to finance her defence.
When Cassuto lodged his claim against Kostakidis last year, the Zionist lobby worldwide was winning the propaganda war that Israel was only acting in “self-defence”.
Sustained mass global protests and the International Court of Justice (ICJ) ruling that Israel was plausibly committing genocide in Gaza as well as a subsequent ICJ finding that Israel is illegally occupying the Palestinian territory, and the issuing of an international warrant against Israeli PM Benjamin Netanyahu and a UN finding of genocide, has shifted opinion.
A major breakthrough in combating Israeli hasbara (propaganda) came in July, when Federal Court Justice Angus Stewart found during a trial that “the ordinary, reasonable listener would understand that not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group”.
“Needless to say, political criticism of Israel, however inflammatory or adversarial, is not by its nature criticism of Jews in general or based on Jewish racial or ethnic identity,” Stewart said.
MacDonald said in the Kostakidis strikeout case that “It is not logically impossible that a particular news reporter, even when acting as a news reporter, might engage in particular acts because of people’s race or ethnic or national origin … Whether there is a basis to draw that conclusion in a particular case will depend on an assessment of the evidence in that particular case.”
Kostakidis wrote on X that the case against her is being allowed to proceed due to “bad law” which permits entities, such as the ZFA, to drag individuals through the court process to silence them.
“The reality is because of a bad law, a lengthy and costly legal case can be brought against you by anyone who claims you are motivated by racism and are responsible for their feelings,” Kostakidis said.
“My view has always been this is a bad law,” she added. “But despite the significant cost to me, I welcome the opportunity it will provide for them to run their arguments up against a brick wall.
“The attempt to shut down criticism of a genocide is morally reprehensible and dangerous. Those trying to control the narrative will not prevail.”
[Paul Gregoire works Sydney Criminal Lawyers where this article was first published.]