Is the law stifling comedy? A recent court decision suggests it does, write Middletons partner, David Hope and senior associate, Christien Corns.
As Channel Ten and Mick Molloy found out in Cornes v The Ten Group Pty Ltd & Ors  SASC 104 (Cornes), there is a fine line between a joke and an indefensible defamatory comment.
It has always been the case that a publication can concurrently be humorous and defamatory. As stated in Donoghue v Hayes (1931), "if a man in jest conveys a serious imputation he jests at his peril". Generally though, if the material is understood as a joke, then it will not be seen as damaging a person's reputation. In determining whether a joke is defamatory or not, the Court will consider whether the statement would be understood as defamatory by the "ordinary reasonable person".
On 28 June 2008, Stuart Dew (a former AFL player) was interviewed on Channel Ten's Before the Game. The show is hosted by a panel, including several well-known comedians. Since it first aired in 2003, a regular segment is an interview with a player.
While these interviews are generally "informative" in nature, they are usually interspersed with light hearted questions and jokes from the panel. The interview with Dew made reference to a newspaper article by Nicole Cornes (the Plaintiff and wife of former AFL coach, Graham Cornes), in which she praised Dew for, among other things, leaving AFL in order to be with his then girlfriend. Making a joke about the glowing nature of the comments by the Plaintiff, panel member Mick Molloy said: "And apparently you slept with her, too."
The defendants' position was that taking into account the history of the show, the comedic reputations of the panel members and the immediate context of the comment, the ordinary viewer could not perceive the comment as anything but a joke.
The Court rejected the defendants' arguments and found that while it has comedic elements, the show contains substantial "informative material" segments.
Also, it found there was no evidence that viewers "were in any way familiar with the work or reputations" of the comedians. The ability to channel-surf television shows meant that the history of the show was not persuasive, and that persons who had not watched the show could have stumbled upon the episode in question. Also, it found that in South Australia by 28 June 2008 there would have been a very high percentage of people who knew the plaintiff was married to Graham Cornes. And finally, even if the ordinary reasonable viewer did know about the comedic background of Molloy, they would still have found that the statement was defamatory.
The Court's findings can create uncertainty for publishers of material which is comedic in nature but is centrally based around current affairs, of which there are many. Even having a well-known comedian is not enough to make the publication a "joke" for here, the Court effectively found the Plaintiff's marriage was more well-known in South Australia than the works or reputation of Molloy.
Perhaps all that publishers can do is be ever vigilant to avoid any jokes with the potential to be considered in bad taste, which can be difficult in the context of a live TV show, and may stifle comedic creativity.