From Pantsdown to Kenny – Satire still at Large!

By Mandy van den Elshout and Vincent Floro on 20th October 2014

Introduction

Satire and comedy are important tools used by artists, writers, cartoonists, comedians and political commentators alike to express their views while (with a bit of luck) making us laugh! 

The recent case involving the ABC and political commentator, Chris Kenny, focussed our attention on the relationship between satire and defamation and whether or not the courts have a ‘sense of humour’ when it comes to satire and comedy that impact on a person’s reputation. 

This article sets out some of the key issues that should be considered when creating a humorous or satirical piece, to assist people in assessing any defamation risk.

Key Issues and Risk

When creating a satirical or comedic work, you should keep the following questions in mind:

·         Does your work convey a serious meaning about a person?  Is it possible your work could cause others to think less of a person or affect a person’s reputation?

·         Put yourself in the shoes of others and ask, could it come across to some people as cruel, outrageous and humiliating rather than clever, witty and good-humoured?

·         Does your work expose a person to ridicule?

·         What is the context of your work?  Would an ordinary reasonable person realise that it is satirical or a joke? 

·         Does your work present a person in a context that they might consider offensive?

·         Is the meaning and motive of your satirical work clear or ambiguous? Could people draw meanings from the work that you did not intend to convey?

What is meant by “satire”?

The Oxford English Dictionary defines satire as the use of humour, irony, exaggeration, or ridicule to expose and criticize immorality or foolishness especially as a form of social or political commentary.  In a general sense, we commonly see creators poking fun, mocking and sending up those they wish to make a point about.  However, what is clear is that such a course carries with it an inherent defamation risk.

From its inception, satire that relates to a person is inherently dangerous from a defamation perspective unless the audience understands that it, and the meanings and interpretations that spring from it, cannot possibly be taken seriously. 

The difficulty with satire turns on interpretation.  There is no specific defence for satirical works.  Trying to formulate a clear demarcation around when satire is defensible is not black or white.

What makes something “defamatory”?

  Whether a publication is defamatory will depend on whether it is likely to:

a)    lower a person’s reputation in the eyes of reasonable members of the community;

b)     lead people to ridicule, avoid or despise that person; or

c)    injure that person’s reputation in business, trade or profession

In order to ascertain whether a joke is likely to affect a person in any of these ways, the legal construct of the “ordinary reasonable person” is utilised, which is in essence a hypothetical referee assessing community views at the relevant time.

Who is this “ordinary reasonable person”?

The ordinary reasonable person “is a person of fair average intelligence.., who is neither perverse.., nor morbid or suspicious of mind.., nor avid for scandal:  That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs...”[1] And one would imagine, have an “average” sense of humour? (whatever that is!)

So the judge or jury must stand in the shoes of the so-called “ordinary reasonable” reader, viewer, listener, to decide (amongst other things) whether a publication is actually defamatory.

When a court is asked to regulate something as subjective as humour, “justice can come about only through the full disclosure of competing concerns”.[2]  But it is not yet clear the weight that is ascribed to these competing concerns by the courts.  In 1997, ABC radio station Triple J broadcast a song called “Backdoor Man”.  The song was the work of a gay political activist, Pauline Pantsdown (the drag name of UNSW Lecturer, Simon Hunt), and became the basis for a defamation case between Pauline Hanson and the ABC.[3]  Pantsdown had sampled many hours of Pauline Hanson’s speeches and statements and had then rearranged those samples to make a fictional, nonsensical piece.

Even though the song sampled Hanson’s own words uttered by her (albeit in different contexts and on different occasions), any person listening to the song would have quickly realised that the song was a compilation of samples, put together in an incoherent way that actually expressed views contrary to those she expressed publicly.

This case demonstrated the legal complexity around satire that can be interpreted in different ways.  Would the ordinary reasonable person on hearing this song believe the meanings pleaded by Hanson and her legal team: that is, Hanson was a paedophile, homosexual, prostitute, or a person who engages in unnatural sexual practices?

The song was clearly satirical so surely no ordinary reasonable person would seriously believe the meanings pleaded. However, the Supreme Court of Queensland granted an injunction that restrained the ABC from broadcasting the song.  The injunction was upheld by the Queensland Court of Appeal and an application for special leave to the High Court was rejected.

The court did not give any prominence to the satirical nature of the song.  The stark contrast between the literal and satirical readings of Backdoor Man illustrate that courts must sometimes choose between radically different readings that will be more or less, evident, to different audiences.  Society is too fractured, diverse and multifaceted to pretend that “Mr or Ms Average” always fulfil their given role.  In difficult cases, therefore, when choosing the meanings that arise, it may be appropriate for courts to give greater recognition to the reality and value of satire.”[4]

The judges in this case did not think that the “ordinary reasonable person” would be able to understand or realise that a work is satirical.  But can the “ordinary reasonable person” understand the fine distinctions between a joke, vulgar abuse, poor taste?  Can the “ordinary reasonable person” identify total exaggeration or disproportioned emphasis on certain characteristics that are often the traits of a satirical work?

Mere or Vulgar Abuse

There are times when jokes are not intended to give rise to a defamatory meaning.  How often do you hear “But it was just a joke!”

A joke that is unlikely to injure the reputation of a person targeted by the joke may be considered mere or vulgar abuse[5].  It can be very tricky to differentiate meanings that are just tasteless or vulgar but not actionable, and those which are held to be defamatory.

Even if a statement does not damage a person’s reputation, it may still be defamatory because it leaves them open to ridicule.  In 1995 a British court was of the view that calling a person hideously ugly could be defamatory[6].  The statement was made about the actor, Dennis Berkoff, and the court found that the statement had left Berkoff open to ridicule, and that it should be left to a jury to decide whether the ridicule amounted to defamation.

Context

In essence the context of a joke is essential in determining whether it is defamatory.  In 2012, the South Australian Court of Appeal found that comedian, Mick Molloy, had defamed South Australian media personality Nicole Cornes for suggesting that she had had an affair with an AFL footballer.  Molloy’s comment was made during an AFL panel show, Before the Game. Prior to Molloy’s comment, the panel were joking about AFL footballer Stuart Dew and an article by Cornes that discussed Dew’s previous relationships.  The court highlighted that an ordinary and reasonable person who was watching the show would consider factors like the timing and delivery of a joke when deciding if the joke is defamatory.  Whether a joke falls flat or offends people could also be a factor in whether it is found to be defamatory.

Viewers may even refer to previous knowledge about the people mentioned in the joke or the person telling the joke.  If the joke is told in the context of a comedy show, it is more likely that people will realise that a statement is in jest and is not serious.   However, there may be certain viewers who don’t have this extrinsic knowledge, and who will not actually realise that a statement is in fact a joke.[7]

Understandably, it is difficult for comedians and satirists to assess the context of a joke prior to a performance, and jokes are often made off the cuff.

Proportionality and Meaning

Visual art can be used to deprecate or make fun of people – this is often done by altering or “photoshopping” an image.  However, even though someone viewing your piece may recognise that the image is not a real photograph of the person, the work may also convey certain meanings about that person or may subject that person to ridicule.

Early cases on this issue demonstrated a reluctance by the courts to rule that a clearly altered image could be defamatory.  A famous defamation case in England surrounded a front cover image on a British newspaper featuring the actors who played Harold and Madge in Neighbours.[8]  The heads of the actors had been superimposed onto near naked people in pornographic poses.  The court found that while the image was in poor taste, an ordinary and reasonable reader would not have believed that the photo was real.

In recent times, courts have been much more open to the possibility that a mock-up could be defamatory.  In 2013, Zoo magazine photoshopped the head of Green’s Senator, Sarah Hanson-Young, onto the body of a bikini model.  Even though the court recognised that people would realise the photo to be a mock-up, they acknowledged that the photo may convey that Hanson Young “is a joke” and that she “is not a serious politician”.[9]

In 2013, the ABC program “The Hamster Decides” satirised political commentator Chris Kenny by portraying him as having sex with a dog with the words “Chris “Dog Fucker” Kenny” beneath.  Kenny sued the ABC for defamation but the case was subsequently settled.   Kenny argued that the skit conveyed the following meanings about him:

(a)  The Plaintiff is a pervert who had sexual intercourse with a dog.

(b)  The Plaintiff is a low, contemptible and disgusting person.

(c)  The Plaintiff's attacks on the ABC were so dishonourable and disgusting that he deserved to be compared to, and portrayed, as a person who has had sexual intercourse with a dog."

The first meaning was struck out by the court, which was of the view that a person watching the Hamster Decides would not have taken the photo literally, and that even though Kenny was depicted having sex with a dog, the meaning was not capable of being conveyed. 

 

That said, the court found that the other two meaningss (with a minor alteration) could have been conveyed by the skit, and that it should be left to a jury to decide whether they defamed Kenny. 

The court also noted that the image was “a massive exercise in ridicule that is vastly out of all proportion to that which precedes it”.[10]  While this lack of proportion may have been an element of the joke itself, it should be remembered that jokes that are disproportionate are often the ones that expose the target of the joke to ridicule.  This is because jokes that are disproportionate or offensive tend to linger in the minds of viewers.  If a meaning of a joke is so absurdly offensive, even in light of an element of sarcasm, it may still expose the joke’s target to ridicule.   

Jokes that are over-the-top or disproportionate may also lead to ambiguity in terms of the true meaning or motive behind the joke.  There may be a political message behind your satirical piece, but if the piece contains features that are offensive or crude, then it will be easier for a person who is the subject of the work to argue that other meanings arise, which may be more difficult to defend. 

For jokes of the kind discussed in Hanson-Young and Kenny, satirists need to ensure that the meaning of the joke is conveyed clearly and that the absurdity of the work is emphasised.

Defences to Satire

There are a number of defences that defendants can turn to if their joke or satirical piece is seen to be defamatory. 

            Truth

Generally the first defence you would consider with defamation is truth.  This is because a person’s reputation is not damaged by the statement if it is found to be true – any damage only reflecting the persons own actions.  That said, humour and satire often contain elements of exaggeration, falsity or absurdity, so it is generally difficult to rely on a truth defence in relation to a satirical/humorous statement. 

            Honest Opinion

The defence of “honest opinion” may be a more appropriate defence to turn to in defending satire. 

However, in order to rely on this defence, the satirical work needs to be framed as a statement of opinion for it to be protected by this defence, both under the uniform Defamation Acts and at common law.

The following requirements need to be fulfilled in order for a work to be covered:

a)    The opinion must be based on material that is factually true or notorious.  So it would be difficult to defend a joke that is absurd or makes a claim about someone that is not true.

b)    The opinion must be about a matter of public interest.

c)    The opinion must also be genuinely held.  This is also a difficulty with comedy and satire, particularly when the joke is made by a fictional character.

 In the case between architect Harry Seidler and newspaper company Fairfax[11], the newspaper was able to successfully argue the defence of honest opinion.  The case centred on a cartoon by cartoonist Patrick Cook published in the National Times in 1982, which satirised Harry Seidler’s architectural style.  The court found that Seidler was a well known architect whose works and achievements were known by the public, and so the opinion conveyed by the cartoon was based on these notorious facts.  In the end, the defence of honest opinion was successful. 

Freedom of Political Communication

One of the defences to the publication of defamatory material is the qualified privilege defence for political discussion, which was set out in the Lange case[12].  This defence is based on the implied freedom in the Australian Constitution to communicate matters of government and politics, so it could only be relied upon if a work was satirising a government, or a political candidate.   Humour and satire that is silly or crude does not tend to align with concepts of political discussion.

Triviality

If it can be proved that the circumstances of a publication were such that the plaintiff was unlikely to sustain any harm, then the defence of triviality may be relied upon.   This might be relevant to your work if it was only published to a very small audience so it would be unlikely that a person’s reputation would not have been affected. 

Any Questions?

If you have any questions about defamation in relation to a satirical or humorous work, contact the Arts Law Centre of Australia for assistance. 

Mandy van den Elshout is a Senior Lawyer and Vincent Floro is a Lawyer at the Australian Broadcasting Corporation.



[1]Hunt J in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

[2]Laura E. Little, Southern California Interdisciplinary Law Journal, Vol 21:93, 2011, p.96

[3] Hanson v Australian Broadcasting Corporation (Qld SC, Ambrose J, 1 September 1997, unreported).

[4]RS Magnusson, “Freedom of Speech in Australian Defamation Law: Ridicule, Satire and Other Challenges” (2001) 9 Torts Law Journal 269 at 291.

[5]Bennette v Cohen [2005] NSWCA 341 at 51

[6]Berkoff v Burchill [1996] 4 All ER 1008

[7]Cornes v The Ten Group Pty Ltd & Ors [2012] SASCFC 99

[8]Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65

[9]Hanson-Young v Bauer Media Limited [2013] NSWSC 1306

[10]Kenny v Australian Broadcasting Corporation [2014] NSWSC 190

[11]  Seidler  v John  Fairfax  & Sons Ltd [1983] 2 NSWLR 390

[12] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

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