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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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