Defa-haha-mation… is there any room for humour in the law of defamation?

The recent case of Cornes v The Ten Group & Ors [2011] SASC 104 has put into question where humour fits within our society.  The judgment indicates that the Court is prepared to intervene where a joke goes too far.

The case arose after Mick Molloy, a comedian/presenter on the television show Before the Game, made a “joke” about Nicole Cornes during a live interview.  Nicole Cornes is married to former AFL coach, Graham Cornes.  She had also authored a newspaper column in Adelaide’s Sunday Mail and, at the time of infringing conduct, had run for a seat in federal parliament as part of the Kevin 07 campaign.

Molloy’s joke pertained to a column that Nicole Cornes had written some one and a half years earlier, which was entitled “Thank you Stuart, you’re a love”. The column was an apparent reference to the football player Stuart Dew.

During an interview with Stuart Dew on Before the Game, this article was mentioned, leading to a quip by Molloy about the parameters of the relationship between Dew and Nicole Cornes.

Nicole Cornes consequently sued Molloy and Channel Ten for defamation, and won.  The contentious issue in this case concerned whether the matter contained a defamatory imputation and whether an ordinary reasonable viewer would have understood Molloy’s words as defamatory (by its implication of an adulterous relationship), in circumstances where – according to the defendants – the comment was “clearly made in jest”.

The defendants placed a lot of emphasis on the surrounding circumstances in which Molloy’s comments were made, arguing that Molloy (and the other presenters) were all comedians and that Before the Game was humorous in nature. Because of this, the defendants argued, the ordinary reasonable viewer would have understood that Molloy’s comments were a joke, and therefore not true.

In awarding Cornes $85,000 in damages, Justice Peek found that whether the matter was considered in the broader context of the whole of the program or in the narrower context of the whole of the interview, the ordinary reasonable viewer’s understanding would not have been materially altered by the fact that there were elements of jocularity throughout.

Should we be concerned that, as The Australian’s Mark Schliebs so nicely puts it, “the outrageous potential of comedy as an art form…be thwarted by demands for apology or the pervasive threat of litigation?” [Accessed online here.]

The alternative is to acknowledge that defamation law can operate as a useful check on the limits of social behaviour, particularly Australian culture,  where ‘taking the mickey out of people’ is commonplace.  Careful consideration is vital, especially when using social media, where words are often written ‘off the cuff’ and are disseminated to the world in seconds.  Indeed, sticks and stones may break your bones, but words… can cause $85,000 damage.

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