find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Does the law have a sense of humour?

Does the law have a sense of humour?

Is the law stifling comedy? A recent court decision suggests it does, write Middletons partner, David Hope and senior associate, Christien Corns.

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 [2011] 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.  

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Does the law have a sense of humour?
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Oct 20 2017
Podcast: One of law’s most infamous alumni – in conversation with Julian Morrow
In this episode of The Lawyers Weekly Show, Melissa Coade is joined by The Chaser’s Julian Morrow....
Oct 20 2017
High Court overturns ‘excessive’ anti-protest legislation
Bob Brown’s recent victory in the High Court over the Tasmanian government was a win for fundament...
Oct 20 2017
Changes to Australian citizenship laws blocked
Attempts to beef up the requirements to obtain Australian citizenship were thwarted this week, after...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...