Readers of previous eAlerts may recall that in 2008 Sir Elton John unsuccessfully sued the Guardian newspaper for defamation arising out of spoof article claiming to be an excerpt from Sir Elton's personal diary. The newspaper successfully defended the claim on the basis that the article was satirical.
More recently, Australian comedian Mick Molloy has learned the hard way that not all jokes will avoid being defamatory.
On 7 July 2011, the Supreme Court of South Australia found that Nicole Cornes had been defamed by Molloy on Channel 10's "Before the Game".
Cornes' claim arose from a live interview that footballer Stuart Dew gave on the popular show in June 2008. The circumstances were that after a panellist made a reference to a newspaper article written by Cornes in which she praised Dew, Molloy chipped in with, "And apparently you slept with her too".
Cornes is married to a well known AFL personality and was offended by the allegation of adultery.
At the trial Counsel for Molloy and Network 10 argued that the ordinary reasonable viewer would think that the words were intended as humorous, rather than intended as conveying a statement of fact. It was further argued that the Court should take into account the context of the statement in a comedic television program, as well as the identity of some of the panel members as comedians.
However, the Court found that the words spoken by Molloy did convey the meaning that Cornes had had sexual intercourse with Dew, which was not in fact true. Cornes' marriage was widespread knowledge and therefore the ordinary viewer would have understood the meaning of Molloy's words to be that Cornes had committed adultery. This, the Court accepted, harmed her reputation and caused her personal distress and hurt.
The Court noted that it will usually not be defamatory, although it is in very bad taste, to simply suggest that two consenting adults had sexual intercourse. It is the allegation of infidelity that is the sting in the tail.
The Court rejected the suggestion that the show was comedic in nature, finding that the interview with Dew and the entire program involved conveying substantial informative material, as well as having comedic elements. Cornes was awarded damages of A$85,000, plus interest and costs.
Molloy's experience highlights the need for publishers to "think twice" and if appropriate seek advice before publishing material which may be funny to most, but offensive to the subject of the publication.
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