Parker, James --- "A Licence For The Satirist? The Failure Of Australian Defamation Law To Protect Satire In Political Media" [2021] UNSWLawJlStuS 21; (2021) UNSWLJ Student Series No 21-21

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A LICENCE FOR THE SATIRIST? THE FAILURE OF AUSTRALIAN DEFAMATION LAW TO PROTECT SATIRE IN POLITICAL MEDIA

JAMES PARKER

I INTRODUCTION

In Gardener v John Fairfax & Sons^[1] Jordan CJ remarked that ‘[a] critic is entitled to dip his pen in gall for the purpose of legitimate criticism’.^[2] The remark can be understood to mean that the law of defamation should not and will not punish public commentary, even harsh commentary, where it can be viewed objectively as reasonable and worthwhile. One form of public comment which puts Jordan CJ’s remark to the test is satire. Satire is clearly capable of producing legitimate criticism, even if it is not always used for that purpose. Satire challenges the remark, however, because it does not criticise directly; satire requires audiences and courts to undertake complex interpretation exercises before they can understand how it is critical, what its value is, and whether it is worth any harm caused to reputation.

The purpose of this essay is to discuss the extent to which satire as a form of public comment is protected in Australian defamation law. This discussion involves consideration of the current state of protection first in respect of the cause of action and then in respect of defences. The likely effects of reforms to the law coming into effect later this year are also discussed as an indication of how the state of protection may change going forward. The overarching structure is as follows: Part II provides a working definition of satire and explains its importance both as a political device and in the context of defamation law; Part III begins the analysis of defamation law with the cause of action and the lack of protection afforded to satirists particularly within the ridicule test for defamatory meaning; Part IV discusses two cases which considered the interaction between satire and the cause of action; Part V moves on from the cause of action to consider whether greater protection is provided under the applicable defences. Ultimately, it will be argued that neither the cause of action nor the defences provide, or are likely to provide without significant reform, the protection satire needs in Australia.

II DEFINING SATIRE

It is apt to begin this enquiry by providing a working definition of satire and underlining its importance in political media. This is not a straightforward task and it is not within the parameters of this essay to do so comprehensively.^[3] For present purposes, satire has two essential characteristics: it is ‘humour with a critical purpose’.^[4] It is used by the media as a device to ‘provide relief from the political morass’ by discrediting ideas, public figures and political positions in a manner which aims to be both entertaining and informative.^[5] In this regard satire is both ‘a weapon and a toy’.^[6] Satire is also a literary genre. Although it may overlap in some ways with parody, caricature and burlesque, satire is different from other genres because it is ‘vastly varied’ in respect of form, subject and purpose.^[7] The satirical genre is also complex because it requires that the reader, listener or viewer be aware of the subject of the critique without any explicit reference to it.^[8] Satire is identifiable and intelligible only by an audience who understands its context and is aware of the underlying idea, public figure or political position being critiqued.

Satire is important for two reasons. First, it is a literary genre in its own right. Satire has remained relevant across varying political systems and cultures in the Western World since its origin in Graeco-Roman civilisation.^[9] As literature, drama, film, television and visual arts produced influential works over the course of modern history, satire has been a common element used by writers from Shakespeare in Timon of Athens to Huxley in Brave New World to Kubrick in Dr Strangelove. Second, and particularly for the purposes of this essay, satire is democratically important. It aims provoke the attention of society to, and discussion about, political affairs. Fitzgerald contends that satire is ‘the most important form of public humour’ because it is ‘designed to make society examine itself critically and confront its deficiencies’.^[10] He captures its relevance to political media in a passage taken from the American defamation case of Falwell v Flynt:^[11]

‘Satire is particularly well suited for social criticism because it tears down facades, deflates stuffed shirts and unmasks hypocrisy by cutting through the constraints imposed by pomp and ceremony, it is a form of irreverence as welcome as fresh air... Nothing is more thoroughly democratic than to have the high and mighty lampooned and spoofed.’^[12]

In a legal context, satire and defamation each represent one side of the tension between two underlying interests, being freedom of speech and protection of reputation. There can be no way to reconcile both interests with one another. Indeed, ‘a certain amount of free speech chill has to be accepted as the price for protection of reputation’.^[13] It is especially important to consider the balance struck between these interests in Australia where freedom of speech is not protected by a bill of rights.^[14] Areas of private law must play a larger role in protecting this freedom than they do in other jurisdictions.^[15] Copyright represents one area of law which has protected freedom of speech by including fair dealing exceptions for parody and satire to its general tests for liability.^[16] However, it is defamation which presents ‘the greatest challenge to freedom of speech’ in Australia.^[17] Satire represents one form of freedom of speech which may be used to assess the success of defamation law in maintaining the balance between these interests.

Despite the fundamentally conflicting rationales for defamation law and satire, and the general prevalence of satire in Australian political media, there have been few attempts to sue for defamation over satirical material.^[18] The reason for this is not entirely clear. Partly, public figures may be reluctant to sue given fears of further embarrassment or the risk of affording satirists larger platforms from which to mock them in litigation.^[19] Nonetheless, concern over the protection of satire is well-founded. In the rare circumstances which it has arisen, the courts have demonstrated an unwillingness to delve thoroughly into the meaning of satire in applying the relevant tests and have consequently tended to find in favour of plaintiffs.^[20] The following discussion into the elements of defamation law which have the capacity to protect satire thus aims to inform how satire should be protected by the law where and when it does arise.

III THE PROBLEM WITH RIDICULE

Satire interacts with the defamation cause of action in respect of defamatory meaning. The elements of identification and publication are normally non-contentious.^[21] The logical way into the cause of action for satire is via ridicule limb of the “hatred contempt or ridicule” test, representing one of three historical common law tests still used to define what is defamatory in the absence of a statutory definition alongside the “disparagement of reputation” and “shun and avoid” tests.^[22] Disparagement is the principal test; the others are ‘supplementary’.^[23] Critics have suggested that the desired effect of the supplementary tests is already captured by the principal test, and, alternatively, if it is not, that the supplementary tests protect interests other than reputation and, in doing so, exceed the proper reach of defamation law.^[24] It is arguable they do not retain any utility in modern defamation law.^[25]

The concerns surrounding ridicule and its relevance to satirists demand particular consideration for the purposes of this essay. The test holds that a matter exposing a plaintiff to ridicule in the view of the ordinary and reasonable reader is defamatory, even if it does not disparage that plaintiff’s reputation.^[26] It allows plaintiffs who may be ‘unable to locate a disparaging imputation... to bring a defamation action if the unwanted publicity places [them] in a ridiculous light.’^[27] The omission of the disparagement requirement is significant because it suggests the ridicule test may not actually aim to protect reputation but rather a different interest. McNamara contends that it instead protects a plaintiff’s ‘self-worth’.^[28] Reputation is an interest which necessitates a moral judgment to be made of the plaintiff.^[29] Exposing a plaintiff to ridicule is always likely to affect a plaintiff’s self-worth, but it does not require the community to make a negative moral judgment of them.^[30] One indication of the distinction between these interests is that the truth of a statement may be irrelevant in a defamation claim based on ridicule because self-worth may be diminished by the disclosure of private facts, regardless of whether or not they are truthful.^[31] This differs from the principal test which allows for the defence of justification.

This formulation of the ridicule test is the result of its unconvincing treatment in the common law. The “hatred, contempt or ridicule” test was confirmed in Parmiter v Coupland.^[32] McNamara argues that, in the early English cases, exposure to ridicule was actionable because it detracted somehow from the plaintiff’s social standing and therefore did impute moral blame, or at least moral inferiority.^[33] For example, the first reference to ridicule was made in Mason v Jennings^[34] in 1680 where a man was held out to be beaten by his wife, an imputation that, in the context, likely would have produced a negative moral judgment of him as a symbol of his dishonourable character. McNamara also points to the erroneous conflation of ridicule and disparagement suffered by a person infected with a disease in Villers v Monsley^[35] as responsible for the early propagation of the word.^[36] However, it was not until the landmark American case of Burton that the law formally departed from moral blame. In that case, a jockey was photographed for an advertisement holding a saddle. Given the particular way the photograph was taken, the straps appeared to be attached to him instead of the saddle, creating an image that was ‘grotesque, monstrous and obscene’.^[37] Notably, the court accepted the ordinary and reasonable reader would have noticed on the clear optical illusion; it was the fact that the plaintiff was made into ‘a preposterously ridiculous spectacle’ which was defamatory.^[38] In identifying the applicability of the ridicule test in Burton, Hand J expanded the law significantly: ‘the plaintiff ’s sense of self-worth [became] an interest that [was] to be protected under defamation laws’ in place of the feelings of the community.^[39] Arguably, Burton is largely responsible for the tenuous link between ridicule and reputation. How can ridicule, especially over an imputation known to the community to be untrue and not the fault of the plaintiff disparage their reputation?

In New South Wales, the ridicule limb was revived in Boyd.^[40] Hunt J held that an imputation would be capable of being defamatory if it ‘display[ed] the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part’.^[41] The centrality of humour and the connection of satire to the ridicule test were also confirmed in the definition of ‘ridiculous’ as ‘deserving to be laughed at or absurd’.^[42] The test has since been successfully relied on in this form. In Ettingshausen, for example, the plaintiff sued the publisher of a magazine over a naked photograph taken of him. Counsel for the plaintiff produced two distinct imputations. First, it was complained that the ordinary and reasonable reader would conclude he had deliberately permitted the photograph to be taken and published, relying on additional teasers and text in the magazine.^[43] This imputation relied on the principal test – disparagement of the plaintiff’s reputation. Second, in line with the ridicule test, it was complained the plaintiff had been made into a ridiculous spectacle by the exposure of his genitals.^[44] Although the case was decided on the basis of the first imputation, Hunt J held that the second was capable of bearing defamatory meaning given that the plaintiff was exposed to ‘more than a trivial degree’ of ridicule.^[45] This qualification to the Burton test does not significantly curtail defamatory capacity, particularly in relation to satire, which does not aim to produce a measured reaction.^[46] The ridicule test is thus capable of being applied in Australian defamation law.

There are two issues arising from this understanding of the test for satirists to consider. The first concerns the practical features which distinguish ridicule from the principle test. Along with the inapplicability of the justification defence, ridicule departs from the principal test by eschewing reliance on ‘the standards of right-thinking persons’.^[47] Ridicule cases typically have not involved discussion of whether the ordinary and reasonable reader, listener or viewer would consider ridicule defamatory at all.^[48] The view of the ordinary and reasonable person is only considered in relation to whether or not the defendant is able to prove triviality as a defence. ^[49] This suggests that that the law may not view satire or ridicule, more generally, as harmless, fair or necessary criticism in the eyes of the ordinary and reasonable person. The second issue is more fundamental and perhaps less correctable. It is the fact that satire does not aim to achieve anything other than what the ridicule limb of the test is designed to prevent: ‘how can satire be excused when its raison d’être is to ridicule its target?’^[50] Indeed, to be effective, satire often even encourages its audience to ridicule its target as a way of emphasising the underlying message.^[51] The ridicule limb diminishes the message satire puts forward because it ‘aims to make us polite’:^[52] it represents a view that is ‘content with a society where lawful satire can never get beyond gentle gibes and friendly caricatures, so that public figures... feel loved at the end of the day’.^[53] Therefore, the ridicule test fails to account for the democratic importance of satire.

The introduction of a serious harm threshold in the Defamation Amendment Act 2020 addresses the first issue in part.^[54] The new provision requires the court to determine whether the matter ‘has caused, or is likely to cause, serious harm to the reputation’ of the plaintiff, either on application by either party or by the judge’s own motion.^[55] The intention behind the threshold is to filter out ‘spurious claims’ which previously did not occur until trial, if at all, and, in doing so, reduce the time and cost incurred in litigation.^[56] The determination can be made by the judge at any time and may even be re-raised, depending on how the provision is interpreted.^[57] Further, the defendant will no longer bear the onus of proof in establishing the harm suffered was trivial given that the serious harm threshold will become an element of the cause of action.^[58] Therefore, the new provision may be relied upon by defendants in cases involving satirical material as a first port of call in establishing that the ordinary and reasonable reader would not consider satirical material defamatory where it does not disparage the plaintiff’s reputation. The shift of the onus of proof to the plaintiff is likely to drive more cases to be resolved in favour of the defendants given the difficulties which may arise in establishing harm.^[59] More significantly, the amendment appears to indirectly encourage the convergence of ridicule with the principal test for defamatory meaning and the traditional bounds of defamation law by requiring that serious harm must be caused to the plaintiff’s reputation, whichever test is relied upon. In doing so, it may help to effectively undo the common law developments that have established ridicule (without a requirement of disparagement) as a test for defamation in Australia. However, the threshold does not affect the second issue; it does not account for the fact that satire must necessarily ridicule its target to convey meaning and that it may serve a useful purpose notwithstanding the harm it causes. The second issue is unlikely to be remedied however the cause of action is reformed given that there is no presumption in defamation law that harm to reputation is justifiable. The purpose of satire, and whether it is justifiable for democratic reasons, is more aptly considered in the form of a defence.

IV CASE EXAMPLES

The difficulties satirists have in disputing the defamation cause of action are appropriately illustrated by two cases spanning the last two decades of media law: Hanson^[60] and Kenny.^[61] Both cases considered imputations that were intended to be satirical, notwithstanding both plaintiffs relied on the principal test, rather than the ridicule test. The earlier case, Hanson, indicates that satirists may be vulnerable to literal interpretations of their subject matter. The recent case, Kenny, indicates that, even where the literal meaning of the subject matter is not defamatory because the ordinary and reasonable reader would not take it seriously, where satirical humour is offensive, defamatory meaning will likely still attract serious consideration. The varying interpretations in these cases of satire’s capacity to harm reinforces the need for effective defences in taking account of its purpose.

A Hanson

Hanson involved an interlocutory injunction filed by Pauline Hanson against Triple J to restrain the radio station from broadcasting the song ‘(I’m a) Backdoor Man’. In the song, sound-bites of Ms Hanson’s voice were noticeably spliced together over an electronic disco track to create the effect of the persona making outlandish statements about her own political beliefs and character. The imputations pleaded were that Ms Hanson was a homosexual, a prostitute, involved in ‘unnatural’ sexual practices, associated with the Ku Klux Klan, a man and involved in or party to sexual activities with children.^[62] Notably, whereas in ordinary defamation proceedings the judge’s role is to determine the defamatory capacity of the imputations, in proceedings for an interlocutory injunction the judge effectively ‘must be convinced that the material inevitably conveys a meaning which is inevitably defamatory in character and which is inevitably indefensible in law.’^[63] Ambrose J at first instance accepted the pleaded imputations and awarded the injunction.^[64] The Court of Appeal concurred.^[65]

The main issue targeted by critics of the decision in both instances was the courts quick dismissal of the meanings that were capable of arising in the song.^[66] Significantly, in assessing defamatory meaning, regard should be had to content, tone and context of the matter.^[67] In spite of the satirical context, Ambrose J preferred a literal interpretation of the lyrics. His Honour referred to the use of Ms Hanson’s actual voice as evidence that any other conclusion as to defamatory meaning was impossible, ignoring the pauses and artificial repetition of certain phrases as evidence the ordinary and reasonable listener would understand it was not Ms Hanson making the statements.^[68] In fact, the statements spliced into the song would arguably have been widely recognised as the opposite policies to what Ms Hanson actually held.^[69] Ambrose J’s interpretation misunderstood the means by which satire conveys meaning altogether. Satire assumes a high level of contextual understanding from its audience; this understanding is crucial in discerning the actual message concealed by distortions of facts in a satirical piece. It therefore requires its reader to ‘maintain multiple representations of a text’, being the literal understanding and the understanding implied by context.^[70] Fitzgerald contends the law needs a sophisticated response to such material so as not to ‘unduly inhibit the true message which readers... have the wit to comprehend.’^[71] In Hanson, a correct application of the ordinary and reasonable listener’s interpretation of the song likely would have suggested that the literal content did not convey its meaning: only a ‘particularly gullible member of society’ would have formed the view that Ms Hanson had actually claimed the things indicated in the imputations.^[72] In this regard, the treatment of satire should be analogous to the treatment of “vulgar abuse” in defamation law; it may be protected where it is so general or inconceivable that it is incapable of conveying defamatory meaning.^[73]

This is not to argue that the matter in Hanson was incapable of bearing defamatory meaning simply because of its satirical nature. Indeed, a more compelling imputation that arguably was conveyed by the song was that Ms Hanson’s style of speech and rhetoric were detestable or obnoxious. This imputation was concealed by Ambrose J’s overly literal interpretation. Notably, even when understood literally, satire does not necessarily an attack of an individual’s reputation. It can be more sophisticated and equally effective where it attacks an idea held by an individual without relying on the individual’s personal characteristics.^[74] ‘(I’m a) Backdoor Man’ purposefully and crudely attacked the person of Ms Hanson. The song may have constituted satire, but it should also have been open to carrying defamatory meaning because it likely did disparage Ms Hanson’s reputation. Further, if satire is to be protected in defamation law, its method of critique, whether personal or not, should be justifiable by its democratic importance. If the court in Hanson had delved further into interpretation it may have been concluded that the disparagement Ms Hanson suffered was not justified by the song’s ambiguous political message.

B Kenny

In Kenny, conservative political journalist Chris Kenny brought a defamation claim against the ABC over the broadcast of a television program entitled ‘The Hamster Decides’ following the 2013 federal election. The presenters of the program satirised Mr Kenny for calling for the ABC to be defunded. The three imputations put forward revolved around a clearly doctored photograph displayed on the program of Mr Kenny having sexual intercourse with a dog. They were as follows: ‘(a) the Plaintiff is a pervert who had sexual intercourse with a dog’, (b) ‘the Plaintiff is a low, contemptible and disgusting person’, and (c) ‘the Plaintiff’s attacks on the ABC were so dishonourable and disgusting that he deserved to be compared to, and portrayed, as a person who has had sexual intercourse with a dog.’^[75] Distinguishing Hanson, the first imputation, the literal interpretation of the material, was struck out by the court given that it was incapable of conveying the defamatory meaning.^[76] The second and third imputations were capable of being conveyed, with the omissions of the words “low” and “and portrayed as”.^[77] Whether they were conveyed was left to the tribunal of fact to consider, but the case was subsequently settled following mounting pressure on the ABC.

The court did not expressly discuss the satirical overtone of the program, but the judgment sheds some light on how judges may reason with the defamatory capacity of satire. The decision to strike out the first imputation is compelling. Significantly, it was accepted that the context of the image (displayed as a response to Mr Kenny calling for the ABC to be defunded) was determinative.^[78] Further, the court recognised that the ordinary and reasonable reader would view the program as ‘a comedy show from beginning to end’ and understand that it was not the forum for ‘exposing actual instances of bestiality’.^[79] This represents a holistic understanding of the program that was absent in Hanson. Context was also incorporated effectively in relation to the interpretation of the second and third imputations. The fact that the image was preceded by suggestions Mr Kenny was ‘an enemy of the ABC’ contributed to the finding that the image was ‘clearly capable of saying something far worse about Mr Kenny than merely expressing displeasure over his conduct as a journalist.’^[80] Considering the generality of these imputations, it is at least plausible their meanings were capable of being conveyed. Notably, the court also referred to ridicule in relation to both imputations in holding that the image was an ‘exercise in ridicule... vastly out of proportion to that which precedes it’ and that there is ‘nothing per se objectionable in a ridicule type case’ which imputes that ‘the plaintiff’s conduct... justified their portrayal in an offensive matter’.^[81] The meaning of the word “ridicule” was not explained in either case beyond indicating that the image would ‘stay in the mind of the ordinary and reasonable reader’. Whether Mr Kenny’s reputation was capable of being disparaged was not considered. This confirms courts are permitted to find satirical material capable of being defamatory with minimal justification. However, as in Hanson, the satire in this case was framed crudely and targeted the individual, rather than an abstract political idea. Particularly given the matter was only considered in light of defamatory capacity, rather than the higher threshold of defamatory meaning, Hunt J was justified in finding in the plaintiff’s favour in respect of the second and third imputations.

Collectively, Hanson and Kenny indicate the difficulty in predicting the extent to which the courts will account for satirical context in determining the success of the cause of action. The fact that an author may claim a comment to be satirical will not (and should not) always be proof against defamatory meaning, even if the material would not be interpreted literally by the ordinary and reasonable reader, listener or viewer. The lessons put forward by the cases are limited, however, because, in dealing only with the cause of action, they only consider whether satire causes harm; there is no scope for consideration of whether it is democratically important.

V DEFENCES

Defences require for harm to reputation to be justified before liability is determined. The qualified privilege and fair comment defences ‘arguably offer the greatest potential for satirists’ in escaping liability given that the way they are framed allows some consideration of the democratic importance of satire.^[82] However, even following the recent reforms, they operate too narrowly to be relied on successfully and consistently by satirists.

A Qualified Privilege

The common law defence of qualified privilege is founded upon a ‘reciprocity of duty and interest between a publisher and its audience.’^[83] It requires that a defendant establish a reciprocal interest which gives rise to a privileged occasion and that they acted reasonably in publishing the defamatory matter.^[84] Historically, the test applied in only narrow circumstances.^[85] However, in Lange, with the court recognising the constitutional implied freedom of political communication, it was extended to provide protection for a broader range of matters, including defamatory statements made in the course of political discussion.^[86] Notably, qualified privilege will still rarely apply to cases involving satire. The test is whether the matter is ‘necessary for the effective operation of [the] system of representative and responsible government provided for [by] the Constitution.’^[87] The defence will not protect satire which comments on ‘matters beyond those closely related to the professional activities of politicians’.^[88] If it is accepted that satire has democratic importance beyond these narrow circumstances, qualified privilege alone likely does not provide significant protection to satirists. Nonetheless, qualified privilege was successfully pleaded in Brander,^[89] a case involving a satirical article published by the defendant, in response to the imputations that the plaintiff did not hold his political beliefs sincerely or have credible views regarding immigration and was motivated by juvenile attention seeking. Mr Brander’s candidacy for political office in South Australia satisfied the Lange political communication requirement.^[90] Further, Lander J (with the other judges agreeing) accepted that the defendants had reasonable grounds to believe the imputations were true based on public statements made by Mr Brander and that it was neither practicable nor necessary for the defendants to seek a response from him and, therefore, that they acted reasonably.^[91] Significantly, the court also implicitly referred to the democratic purpose of satire in holding the defendants were motivated by ‘dissemination of political information’ to Mr Brander’s electorate, rather than malice.^[92] Notwithstanding this finding, it is arguable qualified privilege cannot protect satirists given that the success of the defence is ‘pre-determined once imputations are decided’.^[93] This occurs where the imputations are interpreted, whether correctly or not, as outside the scope of reciprocal interest or unreasonable in making out the cause of action. For example, if Hanson had proceeded to trial the defendants could not have relied on qualified privilege because they could not have established they had reasonable belief in the truth of the assertions in the song. Once the defamatory meaning is established, the qualified privilege defence does not allow for that meaning to be altered merely because the satirical context of the work was not understood.

In respect of the implications for satirists, the statutory defence is similar.^[94] Statutory qualified privilege was intended to be more accommodating than the common law defence.^[95] However, this intention has not been manifested in litigation.^[96] In determining reasonableness, the court may consider a list of factors.^[97] The only factor which appears to encourage the democratic importance of satire to be considered in determining whether a matter is reasonable is the extent to which the matter relates to the performance and public activities of a person.^[98] Further, like the common law defence, the factors cannot assist defendants where imputations are misidentified in the cause of action. However, given that the list is phrased non-exhaustively, it is also arguable that ‘an open-minded court may consider a satirical context as a sufficiently special circumstance to warrant being weighed against the other factors’.^[99] Therefore, there may be some scope for the statutory defence to protect satirists under the new reforms.

The 2020 amendments to the statutory defence favour a broad interpretation of reasonableness and may thus expand the scope of qualified privilege. The new version of the defence clarifies that defendants need not satisfy all of the listed factors to be found to have conducted themselves reasonably and that the list is non-exhaustive.^[100] This provision reinforces the view that Parliament’s intention in clarifying the structure of the test is to encourage the courts to apply it less stringently. However, the new wording has no effect on the substance of the test. The substantial change is that only five of the ten factors to be considered under reasonableness in the existing qualified privilege defence remain.^[101] The other five have been moved to a new public interest defence. This change may allow courts to give more weight to the satirical context given that there are fewer factors listed the courts are likely to consider before they look at circumstances beyond the scope of the provision. However, the remaining factors are still of little use to satirists. Their effect will ultimately be determined by judicial discretion, but the scope of the defence is unlikely to change significantly.

B Fair Comment

Fair comment is likely to be engaged in cases dealing with satire because it aims ‘more than any other defence... to protect freedom of speech’, the central justification for satire in political media.^[102] Consideration of the common law defence of fair comment and its statutory parallel of honest opinion may be combined for present purposes. Both require the defendant to prove the matter published is in the public interest, based on fact or proper material (stated, sufficiently to referred in the matter, or otherwise notorious) and that it is a comment or an opinion which is honestly held, as opposed to a statement of fact.^[103] The common law defence also includes a fairness element: the comment must be made by a person who did not believe the statements to be untrue and was not otherwise actuated by malice.^[104] Fair comment and honest opinion suffer from similar problems to qualified privilege: they do not provide broad scope for consideration of the democratic importance of satire, and, further, will often fail to affect the predetermined success of imputations because the court’s framing of the comment or opinion which must be defended may not have taken into account the satirical context of the material, and is therefore unlikely to be fair or honest. In Hanson, the assertions made of the plaintiff in the song could not have been reasonably based on proper material because they were intended to be exaggerated and fanciful.

Fair comment and honest opinion also create a further problem for satirists. If satire is to be understood by its audience, it must necessarily comment on ideas and political positions which are perceived to be true. However, satirists may face difficulty in explicitly referring to facts in their material without undercutting the humorous effect of the implicit message. It may be uncertain as to whether or not the subject satirised will be sufficiently notorious to meet the requirement that the matter is based on fact or proper material. This problem was fatal at first instance in Brander. The Magistrate’s Court held that there were no notorious facts or facts contained in the satirical piece to support the defamatory imputations expressed in the defendant’s article that the plaintiff was motivated by juvenile attention seeking, displayed effeminate or homosexual behaviour, took drugs and did not hold his political beliefs sincerely.^[105] This issue did not arise on appeal. It is noteworthy, however, that this problem should not impose an unreasonable burden on satirists. To be identifiable and effective, satire should target ideas and political positions which are widely known to the public and perceived to be true, although the courts still hold the power in determining whether the satirical understanding would be held by the ordinary reader, listener or viewer. Therefore the requirement for comment or opinion to be based on fact or proper material can be viewed as encouraging satirists to criticise ideas and political positions which clearly fit within its democratic purpose.

The statutory defence of honest opinion was amended directly in the 2020 reforms in clarifying the definition of “proper material”.^[106] However, the more relevant amendment was indirect, coming in the form of a new public interest defence reminiscent of the public interest element of honest opinion. This new defence will apply if a defendant can prove that ‘(a) the matter concerns an issue of public interest, and (b) the defendant reasonably believed that the publication of the matter was in the public interest.’^[107] It is modelled on a similar provision introduced into the UK Defamation Act in 2013.^[108] This suggests that, like the UK defence, the new provision targets ‘meticulously-prepared investigative pieces’.^[109] Courts may be unwilling to engage the defence at all when dealing with satirical material, which is unlikely to share the same characteristics as the works that have so far attracted the defence in the UK.^[110] It is also difficult to predict what particular circumstances will satisfy the term “public interest”. The scope of the term will vary depending on the consideration given to the list of factors set out in the new provision. Significantly, ‘the importance of freedom of expression’ is mentioned explicitly in this list.^[111] However, whether this factor is useful as an indication of the democratic purpose of satire will again depend on the discretion of the courts and whether they consider satire to be a necessary form of freedom of speech. The remainder of the list is largely composed of the factors previously considered under the reasonableness element within the existing statutory qualified privilege defence and will only be useful where the courts adopt a broad view of public interest.

Neither the existing defences nor the reforms provide sufficient protection for satirists given the current state of the cause of action. They do not expand the scope for material to be justified for democratic reasons or otherwise allow for any alteration to be made to the meaning of defamatory statements in the determination of the cause of action. It may be that a reform to the list of factors considered in these defences, or a new defence altogether, acknowledging the purpose of satire and allowing the meanings of imputations to be altered is needed.

VI CONCLUSION

Satire is not provided sufficient protection under Australian defamation law. It is vulnerable to defamation claims given its logical basis in ridicule, a test for defamatory meaning which arguably does not protect a plaintiff’s interest in reputation and has been used to questionable effect in the common law. Even in cases where plaintiffs do not rely on ridicule, the courts may be reluctant to carefully identify the meaning behind satirical material, leaving satirists vulnerable to imputations which may not have been held by the ordinary and reasonable reader, listener or viewer, especially where the material concerned is crude and personal. Qualified privilege and fair comment will be of little use to satirists if the defamatory meaning of the underlying matter is misidentified in the cause of action. Further, both defences may protect satirists who provide fair or reasonable commentary but they do not provide sufficient scope for the courts to consider the democratic justification behind satire in determining fairness and reasonableness. The recent reforms to the law do not tip the scales in favour of defendants either. The introduction of the serious harm threshold is likely to negate any automatic conflation of satire with defamation under the ridicule test but it does not take into account the purpose of harm caused to the plaintiff’s reputation and whether or not it is justifiable. The reforms made to the defences are encouraging but they do not go far enough in explicitly acknowledging the democratic importance of satire. Nonetheless, more cases dealing with satire and further consideration of satirical meaning and purpose by the courts will help to clarify what changes still need to be made.

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^[1] Gardener v John Fairfax & Sons [1942] NSWStRp 16; (1942) 42 NSWSR 171.

^[2] Ibid 174.

^[3] Dieter Declercq, ‘A definition of satire (and why a definition matters)’ (2018) 76(3) Journal of Aesthetics and Art Criticism 319.

^[4] Jessica Milner Davis and Lindsay Foyle, ‘The Satirist, the Larrikin and the Politician: An Australian Perspective on Satire and Politics’ in Jessica Milner Davis (ed), Satire and Politics (Palgrave Studies in Comedy, 2017) 1, 3 (emphasis added).

^[5] Justice Tony Fitzgerald, ‘Telling the truth, laughing’ (1999) 92 (August) Media International Australian incorporating Culture and Policy 11, 11.

^[6] Declercq (n 3) 323.

^[7] Brian Connery and Kirk Combe, ‘Theorizing Satire: A Retrospective and Introduction’ in Brian Connery and Kirk Combe (eds), Theorizing Satire: Essays in Literary Criticism (St Martin’s Press, 1995) 9.

^[8] Roger J Kreuz and Richard M Roberts, ‘On satire and parody: the importance of being ironic’ (1993) 8(2) Metaphor and Symbol 97, 98.

^[9] Robert C Elliot, ‘Satire’, Britannica (Web Page) <https://www.britannica.com/art/satire/The-satirist-the-law-and-society>.

^[10] Fitzgerald (n 5) 14.

^[11] Falwell v Flynt, [1986] USCA4 1743; 805 F 2d 484, 487 (4^th Cir, 1986).

^[12] Ibid per Wilkinson, J.

^[13] Kim Gould, ‘It’s time to discard the supplementary tests for defamatory meaning’ (2016) 23 Torts Law Journal 26, 44.

^[14] Roger S Magnusson, ‘Freedom of speech in Australian defamation law: Ridicule, satire and other challenges’ (2001) 9 Torts Law Journal 269, 270.

^[15] Ibid.

^[16] Maree Sainsbury, ‘Parody, satire, honour and reputation: The interplay between economic and moral rights’ (2007) 18 Australian Intellectual Property Journal 149, 149.

^[17] David Rolph, Defamation Law (Thomson Reuters, 2016) 6.

^[18] Collette Downie, ‘No laughing matter: Satire’s place in Australian defamation law’ (2012) 17 Media and Arts Law Review 282, 284.

^[19] Ibid 284-285.

^[20] See the discussion of case examples below.

^[21] Ibid 285.

^[22] Rolph (n 15) 110-114.

^[23] Gould (n 13) 29.

^[24] Ibid 34.

^[25] See Lawrence McNamara, Reputation and Defamation (Oxford University Press, 2007) ch 7.

^[26] Burton v Cromwell Publishing Co 82 F 2d 154 (1936) at 155 per Hand J (‘Burton’); Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 447-449 per Hunt J (‘Ettingshausen’).

^[27] Ray Watterson, ‘What is defamatory today?’ (1993) 67 Australian Law Journal 811, 818.

^[28] McNamara (n 25) 161.

^[29] Ibid 170.

^[30] Ibid.

^[31] Ibid 167.

^[32] Parmiter v Coupland [1840] EngR 168; (1840) 6 M & W 105 per Parke B.

^[33] McNamara (n 25) 167.

^[34] Mason v Jennings (1680) T Raym Sir T 401[1803] EngR 219; , 83 ER 209.

^[35] Villers v Monsley (1769) 2 Wils 403.

^[36] McNamara (n 25) 163.

^[37] Burton (n 26) 154.

^[38] Ibid 155.

^[39] McNamara (n 25) 171.

^[40] Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 (‘Boyd’).

^[41] Ibid 453, citing Burton.

^[42] Ibid.

^[43] Ettingshausen (n 26) 445.

^[44] Ibid.

^[45] Ibid 449.

^[46] ‘Satire and the Public Emotions, or What Does Satire Actually Do?’, Humanities Research Centre ANU College of Arts & Social Sciences (Web Page, 6 October 2017) <https://hrc.cass.anu.edu.au/events/satire-and-public-emotions-or-what-does-satire-actually-do>.

^[47] McNamara (n 25) 175.

^[48] Ibid.

^[49] Ibid.

^[50] Magnusson (n 14) 286.

^[51] Fitzgerald (n 5) 14.

^[52] Magnusson (n 14) 281.

^[53] Ibid.

^[54] Defamation Amendment Act 2020 (NSW) s 10A (‘Amendment Act’).

^[55] Ibid s 10A(2), (4).

^[56] MinterEllison, National defamation law reform (Report, 7 August 2020) 3.

^[57] Ibid.

^[58] Ibid.

^[59] Ibid.

^[60] Hanson v Australian Broadcasting Corporation (Supreme Court of Queensland, Ambrose J, 1 September 1997) (‘Hanson’).

^[61] Kenny v Australian Broadcasting Corporation [2014] NSWSC 190 (‘Kenny’).

^[62] Downie (n 18) 287.

^[63] Elizabeth Handsley and Gary Davis, ‘Defamation and satire: Hanson v Australian Broadcasting Corporation’ (2001) 9 Torts Law Journal 1, 3.

^[64] Downie (n 18) 287.

^[65] Australian Broadcasting Corporation v Hanson [1998] QCA 306.

^[66] See Handsley and Davis (n 63) 3.

^[67] Rolph (n 17) 104.

^[68] Handsley and Davis (n 63) 4.

^[69] Ibid 5.

^[70] Kreuz and Roberts (n 8) 101.

^[71] Fitzgerald (n 5) 17.

^[72] Handsley and Davis (n 63) 5.

^[73] Rolph (n 17) 109.

^[74] Kreuz and Roberts (n 8) 111.

^[75] Kenny (n 61) [19].

^[76] Ibid [29].

^[77] Ibid [30], [52]

^[78] Ibid [22].

^[79] Ibid [24], citing Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564.

^[80] Ibid [33].

^[81] Ibid [32], [42].

^[82] Downie (n 18) 296.

^[83] Rolph (n 17) 220.

^[84] Ibid.

^[85] Downie (n 18) 296.

^[86] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

^[87] Ibid 561.

^[88] Andrew Kenyon, David Partlett and Clive Walker, The Right to Speak Ill: Defamation, Reputation and Free Speech ed Russell Weaver (Carolina Academic Press, 2006) 271.

^[89] Brander v Ryan & Messenger Newspapers Pty Ltd (2000) 76 SASR 21 (‘Brander’).

^[90] Ibid [113].

^[91] Ibid [124].

^[92] Ibid [127].

^[93] Downie (n 18) 297.

^[94] Defamation Act 2005 (NSW) s 30.

^[95] Downie (n 18) 297.

^[96] Ibid.

^[97] Defamation Act 2005 (NSW) s 30(3).

^[98] Ibid s 30(3)(b).

^[99] Downie (n 18) 287-298.

^[100] Amendment Act (n 54) s 30.

^[101] Ibid s 30(3).

^[102] Rolph (n 17) 271.

^[103] Ibid 288.

^[104] Ibid 285.

^[105] Brander (n 89) [95].

^[106] Amendment Act (n 54) s 31(5).

^[107] Ibid s 29A(1).

^[108] Defamation Act 2013 (UK) s 4.

^[109] MinterEllison (n 56) 4.

^[110] See Brett Wilson, ‘Defamation Act 2013: A summary and overview six years on, Part 2, Sections 4 to 14’, The International Forum for Responsible Media Blog (Web Page, 30 January 2020) <https://inforrm.org/2020/01/30/d efamation-act-2013-a-summary-and-overview-six-years-on-part-2-sections-4-to-14-brett-wilson-llp/>.

^[111] Amendment Act (n 54) s 29A(3)(i).