‘Taking the piss’ or unfair ridicule? Aussie journalists and defamation law
Australian humour has a penchant for using satire or ridicule to ‘take the piss’ out of just about anyone or anything. As such, satire has been a mainstay in Australian media poking fun at the news, famous people and especially politicians. Has an Australian newspaper ever drawn a flattering political cartoon? Not to mention the television shows: Rubbery Figures, Frontline, Good News Week, The Chasers War on Everything and so forth. But are there boundaries to enjoying a laugh at someone else’s expense? As the playwright and poet, William Shakespeare, once wrote in his famous Othello play, “reputation is an idle and most false imposition; oft got without merit, and lost without deserving”. He died in 1616. Yet, his words bare credence to this day, even more profoundly as the internet wields the power to almost instantaneously damage one’s reputation. And even though we no longer risk being hung, drawn and quartered for publishing offensive comment like in Elizabethan times (Pullan 1994), there are still boundaries to what we can write or report, and some not-so-funny penalties for overstepping them. This essay will discuss these boundaries as defined by Australia’s defamation laws including the legal definitions and, more interestingly, some of the relevant cases involving media brought before the judiciary.
“Defamation is the “tort of publishing to persons, other than the person defamed, imputations the effect of which is to lower the reputation of the person in the eyes of the public at large” (Encyclopaedic Australian Legal Dictionary year, p. 1). This meaning of defamation evolved in the courts as cases transmuted the common law. In Parmiter v Coupland (1840) 151 ER 340, Lord Wensleydale proclaimed defamation “exposes the victim to hatred, contempt or ridicule; or cause(s) him to be shunned or avoided”. Then in 1936, during Sim v Stretch (1936) 52 TLR 669, Lord Atkin proffered defamation “tend(s) to lower the plaintiff in the estimation of right-thinking members of society generally”. Common laws that were a “state-by-state smorgasbord of provisions and remedies” (Little 2013, p. 133) were overridden by the Commonwealth Defamation Act 2005 enacted in 2006. Presently, for a plaintiff to sue for defamation, three criteria must be proven; first, that the defendant published the defamatory material; second, the plaintiff was identifiable in said material; and third, the imputations, or meanings conveyed by the material could be expected by a reasonable person to be harmful to the plaintiff’s reputation (Pearson & Polden 2015). Straightforward, yet in reality, defamatory material can still be legally published providing the publisher has a valid defence (Legal Services Commission 2018). The most common defences available to media include truth, comment, qualified privilege and fair reports (Dent & Kenyon 2004).
Fairfax pleaded the defence of substantial truth and matters related to the public interest when Maurice Kriss took them to court for defamation and injurious falsehood (see Kriss v John Fairfax Publications Pty Ltd (2007) NSWCS 830). Their scathing article in the Sydney Morning Herald wrote of Mr Kriss: “before he became accustomed to wearing his fine horse wig, poor Maurie was struck off for some shoddy financial advice to a Mrs Bach” – one of the article’s many defamatory statements. Fairfax said it was attempted humour and entertainment; yet, the judge ruled in Mr Kriss’s favour awarding him $90,000 in damages. For some context, Mr Kriss had become commercially involved in his client’s, Mrs Bach’s, property affairs in a non-barrister capacity without her obtaining independent legal and commercial advice. He then failed to maintain appropriate records and breached his client’s trust out of financial self-interest. It was this breach of trust as well as giving untruthful evidence that resulted in the Tribunal removing his name from the legal practitioners Roll. Not his competence as a lawyer. Other imputations beside Fairfax’s use of “shoddy” such as Mr Kriss’s readmission to the roll (only 15 days prior to the publication) as a “marvel” were inadequately evidenced. Thus, Fairfax’s substantial truth defence was squashed. The judge condemned the article was “calculated to injure the plaintiff”, was “cruel ridicule” and had statements the journalist knew to be false . Mr Kriss had effectively met the third criteria to sue for defamation – being the imputations could be expected by a reasonable person to harm his reputation. In closing, the judge said it would be difficult to determine “whether his [Mr Kriss’s] professional standing can ever be repaired” .
From colourful writing to photo manipulation, Hanson-Young v Bauer Media Limited (2013) NSWSC 1306 featured both. Australian Greens party senator Sarah Hanson-Young is known for her pro-asylum seeker stance. In June 2012, men’s Zoo Magazine published a photoshopped image of the senator’s head onto a scantily clad bikini model with the accompanying quotation:
“If Sarah Hanson-Young wants more asylum seekers on Australian shores, then this is one way to make sure they keep coming. We know she’ll have her knockers if she agrees but we’re confident she’ll realise it’s for the good of the country” .
The senator, unimpressed with their cheekily attempted humour, sued for defamation pleading the following imputations: “that the plaintiff is not a serious politician” , “that the plaintiff is a joke” , “that being a sex object is the only thing the plaintiff is good for”  and “that the plaintiff, by reason of her pro-asylum seeker stance, has justifiably exposed herself to the ridicule of the defendant” . The defending publisher, sought to strike out the imputations claiming there was no way anyone could have taken it except as a joke (Hanson-Young v Bauer Media Limited (2013) NSWSC), but they were overruled. According to the senator, she took a stand against sexism for her daughter (Safi 2015); soon she will do it again in suing Liberal Democrat Senator David Leyonhjelm for defamation (Karp 2018).
In this next case, the ABC overstepped the satirical line. As Satouris (2002, p. 1) explains, “the basic comedic notion behind satire is by exaggerating fact or rumour and consequently placing the object or situation up to ridicule in a parodic or humorous way”. But it was decidedly too much ridicule when the ABC’s skit show, The Hamster Decides, aired a doctored image of The Australian journalist, Chris Kenny, having sex with a dog. Mr Kenny resultantly sued the ABC for defamation (see Kenny v Australian Broadcasting Corporation (2014) NSWSC 190). He pleaded three imputations: a) “the plaintiff is a pervert who had sexual intercourse with a dog”, b) “the plaintiff is a low, contemptible and disgusting person” and 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” . Malcolm Turnbull called the ABC’s choice to defend the skit as stupidity and the sitting prime minister – Tony Abbott – called it wasting taxpayers’ money (Media Watch 2014). Conversely The Sydney Morning Herald’s Richard Ackland called journalists suing for defamation as “undignified and embarrassing” (2014, p. 2). And The Guardian’s David Marr rebuked Kenny’s money-grab and the ABC’s managing director, Mark Scott’s, apology (2014). The Chasers team behind the skit refused to back down post Scott’s apology as a matter of free speech (Media Watch 2014). Ultimately, that apology became ABC’s downfall; the case never went to a jury to test whether the imputations would have seemed defamatory by a reasonable person. The ABC settled with a handsome cheque to Kenny. Media Watch (2014) described ABC as having “caved in to one of its fiercest critics”, giving him [Kenny] “everything he wanted” and making him famous.
So far, this essay has discussed the media unsuccessfully defending defamatory publications. Yet, there are cases where the judge has ruled in their favour. For example, Sir Elton John sued The Guardian newspaper when columnist, Marina Hyde, wrote a fictional diary excerpt ‘by’ Sir Elton. It satirically poked fun at his White Tie and Tiaras ball:
“Naturally, everyone could afford just 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 evening, because they’re the kind of people who wouldn’t turn up for anything else” (Elton John v Guardian News & Media Ltd (2008) EWHC 3066 QB ).
Sir Elton pleaded the article’s ordinary imputations were that his commitment, aims and objectives to the Elton John Aids Foundation (EJAF) were so insincere that he hosted the ball knowing only a small amount of raised money would go to EJAF. And secondly, that he used the ball to meet celebrities and for self-promotion. The Guardian successfully used the defence of fair comment on a matter of public interest; they pleaded the “lavish celebrity ball was distasteful and wasteful, because all of the money spent on the ball should have been given to EJAF” . The judge ultimately ruled that no reasonable reader could have been misled by the literary device of irony used in this case as sarcasm or ridicule –.
In considering the abovementioned cases, we must also consider which examples of defamation escalate to the courts. Suing for defamation is an expensive process. Thus, while this essay’s foci were the media crossing the what-is-acceptable-funny line, there are innumerable potential cases if money were no issue. This is certainly the case with Dick Smith who through amassing his own fortune freely admits to publishing defamatory material as he can afford the lawsuits. Of course, court costs also have a prohibitive effect in that the media may be perturbed from publishing potentially defamatory matter to avoid expensive litigation, aka the ‘chilling effect’ (Dent 2004). Defamation, while extensively legislated, remains a murky area for the media. Hence the need for professional media lawyers. Inevitably, journalists who push the boundaries will continue to rely on the defences available to them, even when it lands them in court.
Dent, C & Kenyon, AT 2004, Defamation law’s chilling effect: a comparative content analysis of Australian and US newspapers, Legal Studies Research Paper No. 94, Melbourne Law School, The University of Melbourne, viewed 10 August 2018, <https://www.researchgate.net/profile/Chris_Dent/publication/228191802_Defamation_Law’s_Chilling_Effect_A_Comparative_Content_Analysis_of_Australian_and_US_Newspapers/links/0912f512fc64b5b0a2000000.pdf>.
Encyclopaedic Australian Legal Dictionary 2018, Defamation, Lexis Advance Pacific Research, viewed 18 August 2018, <https://advance.lexis.com/document/?pdmfid=1201008&crid=af2ff7dd-7937-48a2-8290-a40d3ed5dcde&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials-au%2Furn%3AcontentItem%3A5D0V-DK71-JYYX-61DB-00000-00&pdtocnodeidentifier=AAEAAGAJW&ecomp=mp_tk&prid=232bcecd-dfa7-40f3-afbf-547e1868a307>.
Karp, P 2018, ‘Sarah Hanson-Young confirms she will sue David Leyonhjelm for defamation’, The Guardian, 10 July, viewed 20 August 2018, <https://www.theguardian.com/australia-news/2018/jul/10/sarah-hanson-young-confirms-she-will-sue-david-leyonhjelm-for-defamation>.
Legal Services Commission 2018, Defamation, viewed 22 August 2018, <https://www.lawhandbook.sa.gov.au/ch16.php>.
Little, J 2013, Journalism ethics and law: stories of media practice, Oxford University Press, South Melbourne, Vic.
Marr, D 2014, ‘Chris Kenny: ‘I’ll be remembered as the journalist called a dog f**ker who stood up for his rights’, The Guardian, 7 June, viewed 21 August 2018, <https://www.theguardian.com/media/2014/jun/07/chris-kenny-ill-be-remembered-as-the-journalist-called-a-dog-fker-who-stood-up-for-his-rights>.
Media Watch: after nine months of agony and embarrassment, the ABC has finally caved in to one of its fiercest critics, Chris Kenny, and given him everything he wanted2014, television program [online], episode 19, ABC1 Television, 19 June, viewed 23 August 2018, <https://search-informit-com-au.ezproxy.usq.edu.au/documentSummary;dn=TSM201406090015;res=TVNEWS>.
Pearson, M & Polden, M 2015, The journalist’s guide to media law: a handbook for communications in a digital world, 5th edn, Allen and Unwin, Crows Nest, NSW.
Richard, A 2014, ‘License to dish it out has burden of ability to take it’, The Sydney Morning Herald, 19 March, viewed 24 August 2018, The Sydney Morning Herald Archives, <http://archives.smh.com.au.ezproxy.usq.edu.au>.
Safi, M 2015, ‘Sarah Hanson-Young says stand over Zoo Weekly sexism was for her daughter’, The Guardian, 7 June, viewed 20 August 2018, <https://www.theguardian.com/australia-news/2015/jun/07/sarah-hanson-young-says-stand-over-zoo-weekly-sexism-was-for-her-daughter>.
Satouris, P 2002, ‘The role of media satire in Australia and its relation to defamation law’, Communication Law, vol. 21, no. 4, viewed 5 August 2018, <http://classic.austlii.edu.au/au/journals/CommsLawB/2002/20.pdf>.