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When is hilarity defamatory?
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By: Jeremy Johnson
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The New Zealand law reports are replete with defamation cases brought by public figures. One of the earliest was in 1911, where William Massey unsuccessfully sued the New Zealand Times for a cartoon that insinuated he was a liar and guilty of disreputable acts. More recently, The Civilian, a previously niche satirical news website, was launched into the public spotlight by the threat of a defamation action from the leader of the Conservative Party, Colin Craig.
The Civilian had published an article entitled "Maurice Williamson looking pretty stupid after floods", in response to Mr Williamson's tongue-in-cheek assertion during the third reading of the Marriage Equality Bill that the rain in his electorate was a sign that the Bill should pass. The article contained a "quote" from Mr Craig that, "after Noah's flood, God painted a giant rainbow across the sky, which was a message that he would never again flood the world, unless we made him very angry. And we have."
Mr Craig alleged that the article was defamatory, as people would think he actually made that statement. The Civilian was accused of creating a fiction "to make him look ridiculous". The threatened legal action was withdrawn after The Civilian placed a disclaimer at the top of the article stating that Mr Craig never made the statement attributed to him.
Although this case did not progress, it is worthwhile to consider when satire or humour will provide a defence in a defamation action. Defamation is simply the publication of an untrue statement about a person that tends to lower that person in the eyes of right-thinking members of society. Todd notes in The Law of Torts in New Zealand that if a humorous statement about a person exposes the person to ridicule, that in itself may be sufficient to constitute defamation. In Cook v Ward (1830) 130 ER 1338, for instance, the defendant recounted a humorous story about the plaintiff being mistaken for the hangman, which was found to be defamatory.
If a plaintiff can prove that a statement is defamatory in character, the fact it was made in jest will not necessarily assist the defendant. This was the case in Keith v Television New Zealand Limited (HC Auckland CP780/91, 3 December 1992), where the allegedly defamatory programme was a satirical review of public issues.
A segment of the show had an interview with a character described as "Beamish Teeth", in an obvious reference to Hamish Keith, the then Chairman of Council of the National Art Gallery. The interview referenced the purchase by the National Art Gallery of two Goldie paintings for a total price of $900,000.00. "Beamish Teeth" commented that the price did not include his commission. TVNZ argued that satire could not be defamatory. However the jury disagreed, finding in favour of Mr Keith. In his judgment as to damages, Judge Robertson noted that "the fact that the programme was satirical does not provide a licence to defame."
It appears from the case law that, in considering whether a satirical statement is defamatory, context is everything. To a certain extent, plaintiffs are expected to laugh off statements that are merely good-natured banter.
As Millet LJ held in Berkoff v Burchill  4 All ER 1008 (CA), "Many a true word is spoken in jest. Many false ones too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them seriously." In the Keith case, the satirical story was based on real events, and there were rumours of Hamish Keith receiving a commission. Thus there was a "sting" to the interview with "Beamish Teeth" as, in light of the rumours, there was a danger the statements about a commission would be taken seriously.
However in other cases, the courts have used context to find that a statement was not defamatory. In Sir Elton John v Guardian News and Media Limited  EWHC 3066 (QB), Elton John sued The Guardian for a satirical piece entitled "A Peek at the Diary of Sir Elton John". The "diary" included the following comments about the annual celebrity Ball hosted by Sir Elton to fundraise for AIDS research:
"Naturally, everyone could just afford to hand over the money if they gave that much of a toss about AIDS research – as could the sponsors, but we like to give guests a preposterously lavish kind of evening, because they're the kind of people who wouldn't turn up for anything less … the sponsors blow hundreds of thousands on creating what convention demands we call a 'magical world' and everyone wears immensely smug 'my diamonds are by Chopard' grins in the newspapers and OK [magazine]. Once we have subtracted all these costs, the leftovers go to my foundation. I call this 'care-o-nomics'."
Sir Elton sued for libel, claiming that the article was defamatory because it suggested that his commitment to the AIDS Foundation and its aims and objectives was insincere, that only a small proportion of the money raised went to the organisation, and that he used the Ball as an occasion for self-promotion. The defendant sought a ruling that the words complained of were not capable of bearing a defamatory meaning.
Justice Tugendhat emphasised that the meaning of allegedly defamatory words depends on their context. Context included the edition of the newspaper in question taken as a whole, and the particular section in which the words complained of appeared. The section complained of was in the "Weekend" section of The Guardian, which is not the news section of the paper. The plaintiff acknowledged that in light of this, no reasonable reader would understand the words as being written by the claimant, rather, a reasonable reader would have recognised the words as an attempt at humour. However, the plaintiff said that a reasonable reader might think that the impugned article contained statements of fact about Sir Elton.
The Judge disagreed, holding that the piece would be understood to be humorous and that no reader would sensibly think that the words complained of were assertions of fact. A reasonable reader of the weekend section of The Guardian would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news. Therefore, the words complained of were not capable of bearing the defamatory meanings pleaded.
This case would most probably apply to articles published by The Civilian, as that website routinely puts "quotes" into the mouths of public figures. The context of its articles are such that no reasonable person would take those quotes seriously.
For instance, the article complained about by Mr Craig also stated that the Prime Minister had reprimanded Mr Williamson for being "a big idiot" and was considering removing some of his ministerial portfolios. Mr Williamson's "response" was that he was "surprised to learn he had portfolios".
Further, other stories on the website include: "Prime Minister faces questions over appointment of teddy bear to GCSB"; and "Libertarians unsure whether to care about death of Margaret Thatcher". Links to other articles are visible whenever a reader views a particular article. Viewed in context, it is hard to see how a reasonable reader could take anything published by The Civilian seriously.
If the concern is that a quote in a Civilian article could be taken out of context, so that people are unaware it is satire, any liability for defamation arguably lies with the subsequent publisher of the statement. That is, when viewed in context the fictitious quotes in The Civilian are probably not defamatory. However, if a person takes a quote out of context and asserts the statement was actually made by the person to which the quote is attributed, that person might be primarily liable for defamation.
Even if satirical speech is found to be defamatory, there would still be a range of defences available to a satirist. An honest opinion or fair comment defence might apply where the "sting" of the satire is merely an exaggeration of something the plaintiff has actually done or said. For instance in Sir Elton's case, it was the truth that Sir Elton threw lavish fundraising Balls, attended by celebrities wearing Chopard diamonds. The Guardian's article satirised the extravagance of these functions. The defence of qualified privilege might also apply where an article is commenting on the actions of public figures.
As many commenters have noted, even if a claim for defamation is made out, potential plaintiffs should be warned about the "Streisand effect". This refers to the phenomenon where an attempt to suppress a piece of information has the unintended consequence of publicising it more widely.
In The Civilian's case, a previously obscure satirical website obtained publicity in the national mainstream media, and its Facebook "likes" doubled. Conversely, Mr Craig was subjected to negative commentary. For instance the Dominion Post suggested that if Mr Craig wished to pursue a career in politics, he needed to "harden up". The ability for stories to be widely disseminated on the internet and through social networking sites increases the likelihood of a defamation action gaining wide publicity and discussion.
Accordingly, there are risks to threatening a defamation action, even if it is meritorious. Clients who wish to bring a claim for defamation on the basis of a satirical or humorous article should be informed of the risks of doing so and the potential difficulties in proving a defamatory statement has been made. It may be that the satirist gets the last laugh.
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