An Egyptian restaurant in Sydney is countersuing a pro-Israel activist over a News Corp stunt, alleging he trespassed on the popular eatery in a bid to get a “negative reaction” from staff.
Ofir Birenbaum went to Cairo Takeaway, a popular restaurant in Sydney’s Newtown, in February, wearing a Star of David cap and necklace alongside reporters from the Daily Telegraph.
The undercover operation, later revealed to be dubbed “undercover Jew” internally by the paper, made international headlines after it backfired.
In August, Birenbaum launched defamation proceedings against the restaurant’s owner, Hesham El Masry, and staff member Talaat Yehia, claiming he was vilified and subject to an investigation by his employer after the restaurant allegedly implied he attempted to manufacture an “antisemitic incident”.
Now, Cairo Takeaway is countersuing Birenbaum, alleging he trespassed because entry to the premises is restricted to its use as a restaurant.
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In documents filed to the federal court on Friday, seen by Guardian Australia, the restaurant’s lawyers say they did not permit Birenbaum or journalists from the Daily Telegraph on to the premises to “covertly film” an interaction or “ambush staff members”.
The restaurant claimed Birenbaum’s true purpose in entering the premises was to produce an “angry or negative reaction from staff”, covertly film the interaction for publication, “ambush” staff once they had a reaction, and/or “seek to cause harm to the cross-claimant by portraying the Cairo Takeaway, its owner, and its staff as being antisemitic”.
The restaurant is claiming loss and damage and exemplary damages, pointing to “the disgraceful and outrageous attempt to increase social division by entering a pro-Palestinian premises wearing a cap that resembles the Israeli flag with a Daily Telegraph camera crew waiting outside.”
The restaurant is alleging they were targeted because of the restaurant’s “pro-Palestinian” stance.
Court documents filed by the restaurant’s lawyers, O’Brien Criminal and Civil Lawyers, reveal an internal planning document that was created by the Daily Telegraph reporter Danielle Gusmaroli and dubbed “undercoverjew”.
“Undercover Jewish man Ofir Birenbaum sees what it’s like being Jewish in Sydney. Will secretly film with his video glasses,” court documents show she wrote.
She then listed Newtown, Blacktown, Bankstown and Arncliffe as areas where they may go to “film peopls [sic] reactions to this Jewish [sic] man in their neighbourhood”.
Restaurant files defence to claims
On Friday, the restaurant also filed a defence to Birenbaum’s defamation claims.
Birenbaum’s statement of claim, released earlier this month, included screenshots of a since deleted social media post that the restaurant posted in the aftermath of the incident. A number of allegations made in this post were later retracted and apologised for by the restaurant.
The restaurant denied the social media posts were defamatory and that they were likely to cause serious harm to Birenbaum’s reputation. It has claimed both a contextual truth and honest opinion defence.
In terms of the contextual truth defence for one of the posts, the restaurant’s lawyers have claimed it imputed that “Birenbaum is a person prepared to stoke division in the community as a provocateur supporting the Israeli government”, and also that he “acted aggressively and provocatively towards Cairo Takeaway staff”.
They are alleging that Birenbaum wore sunglasses that “are sold with inbuilt technology to enable filming”.
“The applicant loitered at the back of the restaurant for over a minute. He was standing and was active on his mobile phone and kept looking at and around the restaurant. The applicant undertook covert filming of the premises using at the minimum his mobile phone and possibly also the recording device on his sunglasses,” the lawyers have claimed.
The restaurant has alleged that Gusmaroli later “walked up to the counter and engaged in a conversation with an employee of Cairo Takeaway, during which she did not identify herself as a journalist”, and then asked: “Do you have a problem with that guy?”
They have also alleged there was then an exchange among the servers, reporters and Birenbaum, which also included other members of the public.
“Gusmaroli falsely accused the female server of being appalled that the applicant came into the restaurant, of being visibly upset that the applicant had come into the restaurant and of having a ‘problem’ with him,” they alleged in court documents.
The restaurant is claiming it had made a reasonable offer to make amends over the defamation claim, including an offer of $25,000 and another apology, but it was rejected.
