No One Is Beyond Satire

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From top: WWN logo, Dustin the Turkey, Denis O’Brien,  Solicitor Sarah Kieran

Further to [REDACTED]’s legal threat against satirical website, Waterford Whispers News…

Solicitor Sarah Kieran, of Media Lawyer Solicitors – who previously worked as a media lawyer at RTÉ for six years – spoke with Rachael English on RTÉ One’s Morning Ireland earlier about why she believes humour is little defence in a libel action.

Legal Coffee Drinker, meanwhile, offers a competing view (below).

Rachael English: “Talk to us, if you would, about the process of publishing or broadcasting satirical material in this country because it is a highly legalled process or, certainly, it can be.”

Sarah Kieran: “Yeah, absolutely. I think the first thing to say is that there’s no absolute right to freedom of speech in this country because you also have a right to your good name, under our constitution. And so this is where the difficulty arises. There is no such thing as an ‘only kidding’ defence or that ‘I was messing’. And the intention  of the publisher, which is the person who publishes the piece, in this case, Waterford Whispers, it doesn’t matter what their intention was, the law will automatically deem that they have to prove what they said was correct.
So it is a very fraught process. And I think a lot of cases, it comes down to personal appetite. Some individuals are very protective of their reputations, as you can see in this instance and others take the view that any publicity is good publicity so I think for writers of satire they have to try and… it’s a very fine line so they have to try to get over it. And it depends on the personal appetite, as I said already, so. In this country, it’s a small country. We know high-profile people and what their views are so you will find that the writers of comedy sketches will know these individuals and you just have to make sure that you make it so good and so obvious that it’s satire, I think, to get it over the bar.”

English: “In general terms, what sort of advice would you give to a website, a radio programme, a newspaper columnist or whatever, who’s involved in satire.”

Kieran: “Well, just be conscious that there is no such thing as an ‘only kidding’ defence. Take high-profile subjects who are used to being, I don’t want to use the word ‘slagged off’ but the butt of satire, if you like. Make sure that it’s so surreal that it couldn’t be true, be very incisive of what you say and I think probably one of the most important things is the WAG factor, what we refer to as the WAG factor – leave the wives and girlfriends alone. And then there’s other issues like, for example, if you look at what Dustin the Turkey used to say about Pat Kenny and Anne Doyle and you have to consider, well how would they look if they had sued a turkey. So you have all of those considerations to take and consider…”

English: “I noticed actually, Dustin the Turkey was tweeting about this particular case but I better not say anything for fear I get into trouble myself. I suppose the other thing is that this case is also a reminder that defamation law, the defamation laws they don’t just apply to the papers or the radio. Writing something online can get you a solicitor’s letter.”

Kieran: “Absolutely and I think it’s something we all forget about because of the immediacy of what we do on social media these days. You know we post something on Facebook, we retweet a tweet, that’s a publication, that’s considered a publication under the law. So, in that instance, you can be liable for what’s been said and a lot of the time on social media like that cases are not necessarily brought because considerations are taken into account of, the influence of the person that maybe retweeted, or tweeting but there are cases, and there have been cases in this jurisdiction, there have been cases in  the UK as well and it’s just the immediacy, I think we forget. It’s so easy just to post something so quickly on social media. And websites – the same liability applies as somebody who’s writing an article in the newspaper or taking part in a radio interview as I am now.”

Listen back in full here

HOWEVER…

Does defamation law really not recognise a sense of humour?

We asked Legal Coffee Drinker, what’s it all about.

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

Legal Coffee Drinker:
“Speaking technically, a ‘defence’ in legal terms arises where someone has committed a wrong, but has a lawful excuse for doing so. It’s true that in that sense, there’s no ‘only kidding’ defence for satirists; if they’ve committed defamation, they can’t say they were ‘only kidding’.
However, anyone suing for defamation must show that the ingredients of the wrong of defamation have been satisfied in the first place. Under the Defamation Act 2009, these requirements are quite clear. In particular, the person suing must show that the statement is defamatory – defined by Section 1 of the Act as a statement that tends to injure that person’s reputation in the eyes of reasonable members of society,
In deciding whether or not a statement is defamatory, context is key. The court will look not only at the literal words of the statement, but also its location. A factual statement made on a website which is clearly satirical in nature, will not necessarily be defamatory. The question is whether reasonable members of society would take the statement seriously, given its location.”

Broadsheet: “Any cases on this?”

LCD: Yes. This very issue came up in the U.K. in Sir Elton John v Guardian News & Media, [2008] in which Sir Elton John sued the Guardian in respect of the following satirical piece on his charity endeavours.

A PEEK AT THE DIARY OF…Sir Elton John

What a few days it’s been. First I sang Happy Birthday to my dear, dear friend Nelson Mandela – I like to think I’m one of the few people privileged enough to call him Madiba – at a party specially organised to provide white celebrities with a chance to be photographed cuddling him, wearing that patronisingly awestruck smile they all have. It says: “I love you, you adorable, apartheid-fighting teddy bear.”
The next night I welcomed the exact same crowd to my place for my annual White Tie & Tiaras ball. Lulu, Kelly Osbourne, Agyness Deyn, Richard Desmond, Liz Hurley, Bill Clinton – I met most of them 10 minutes ago, but we have something very special and magical in common: we’re all members of the entertainment industry. You can’t manufacture a connection like that.
Naturally, everyone could afford just to hand over the money if they gave that much of a toss about Aids research – as could the sponsors. But we like to give guests a preposterously lavish evening, because they’re the kind of people who wouldn’t turn up for anything less. They fork out small fortunes for new dresses and so on, the sponsors blow hundreds of thousands on creating what convention demands we call a “magical world”, and everyone wears immensely smug “My diamonds are by Chopard” grins in the newspapers and OK. Once we’ve subtracted all these costs, the leftovers go to my foundation. I call this care-o-nomics. As seen by Marina Hyde ”

The judge in the case (Tugendblat J) held that the above words, in their context, were not capable of bearing a defamatory meaning, stating that “it is common ground that the meaning of words, in law as in life, depends upon their context.”

In this case, the words were contained in the Weekend section rather than the news section, and were headed ‘a Peek at the Diary of Sir Elton John’ in circumstances where no reasonable reader could understand them as being written by the Claimant, and where any reasonable reader would regard them as an “attempt at humour”.

Broadsheet: “So the fact that Waterford Whispers is a well known satirical website, known for ironic, non-factual stories, is relevant here?”

LCD: “Highly relevant. Any reasonable jury would have to take into account the story appeared on a website which contains stories like “David Cameron Urges Politicians to Refrain from Raping Children for the Time Being‘, ‘Rome Actually Built in a Day, New Evidence Reveals’ and ‘Child Refused Entry into Restaurant Due to Having D4 Parents‘.”

Broadsheet: “Like calling you a secret tea sipper.”

LCD: [drains ice cold Frappuccino]: “No.”

Broadsheet:“They also featured a story entitled ‘Denis O’Brien To Sue Everybody‘.

LCD: The fact that satire may sometimes turn out to be true does not mean that reasonable people take what is said on a satirical website seriously. It would however allow the publisher of that website to raise the defence of truth along with the argument above. And it would be interesting to see what extent satire would be deemed to be in the public interest. However I think because of the nature of Waterford Whispers’ stories generally, the case falls within the Elton John principle and no defence is necessary.”

Broadsheet: “It’s a serious business this satire.”

LCD: “I’ve just explained that it’s not.”

Broadsheet: “Sorry Legal Coffee Drinker. I was being [suppressed giggle] ironic.”

LCD: *click*

Last night: Meanwhile, In A Parallel Universe

(RollingNews.ie)

54 thoughts on “No One Is Beyond Satire

  1. ollie

    The Moriarty tribunal concluded that Denis O’Brien gave large sumes of mney to Michael Lowry who was communications minister. O’Brien’s company then was awarded a mobile phone licence.

    The Tribunal report is with the Gardai, revenue and DPP for 4 years. Why don’t you write an article on this? Are you also afraid of Denis?

  2. fluffybiscuits

    O Brien is using bullyboy tactics to shut down any debate surrounding his business deals. That is not conjecture that is opinion as the letter from Meghar solicitor asks that the article be removed as soon as is possible from the site. In the case of an author on the book on Barak Obama in America and his birth cert, a satirical article was published by Esquire and the author of the book subsequently sued Esquire magazine but failed and in the judgement it was deemed that people would get satire but not all would understand such is the nature of satire. In Ireland anyone with any degree of cleverness and an IQ higher than that of a pineapple would clearly see that the article is tongue in cheek. References to a paralell universe clearly mark out what the article is, an imagined scenario that is poking fun (and in a funny way I might add) at O Brien and demonstrates an element of Irish culture that is well known, satire. Satire has been used through history from Punch magazine to Phoenix. From watching the ongoing debate over various figures in Irish political ciricles issuing threats against others for potentially libellous material, when does satire cross the line and become libellous? Satire is the ridiculing of some sort of ridiculous behaviour by others through the use of humour and has been over the years been seen in the public eye from Punch magazine in the 19th Century to such recent programmes as Scratch Saturday or Bull Island to name but a few. Where is the line drawn though with regards to satire and libel laws? The current laws on libel (or defamation as it has now become) are so open ended that technically a lot of satire could be classed as injuring a persons reputation. Defamation law as was posted on another forum takes in satire when it becomes a threat to the ruling classes of society. The UK has concluded that satire is not defamation when Elton John tried to sue the Guardian over a piece they had entitled the diary fo Elton John which was so whimsical and outrageous even an idiot could see it was made up. The UK does not even have the freedom of speech laws that the US has. And finally to sue someone here in Ireland, it requires the victim to have money. High court costs are huge and I am not sure if WWN could lodge that amount of money into the High Court

    1. ReproBertie

      The comments section on WWN and also the isolated incidents of their articles appearing in other media clearly demonstrates that a large number of people do not have “an IQ higher than that of a pineapple”.

      1. Mikeyfex

        Ya, I did a little wince to the same effect as your sentiment when I read the ‘reasonable members of society’ part above.

    1. fluffybiscuits

      “I noticed actually, Dustin the Turkey was tweeting about this particular case but I better not say anything for fear I get into trouble myself”

      That

      #pantigate

  3. ReproBertie

    Sarah Kieran said “And the intention of the publisher, which is the person who publishes the piece, in this case, Waterford Whispers, it doesn’t matter what their intention was, the law will automatically deem that they have to prove what they said was correct.”

    If I’m reading that correclty she’s saying that WWN would be asked to prove the multiverse theory and that in one such universe a court case was brought and a person found guilty. I would love to be on the jury for that one.

      1. ReproBertie

        Not just satire though as we know that a case is being brought against the Oireachtas Committee on Procedure and Privileges. Any discussion that [REDACTED] or his solicitors see as in any way negative is under threat of a law suit and this is the sort of action that screams satire and begs public ridicule.

        It is my fervent hope that the courts rule in favour of the OCPP.

    1. Mikeyfex

      ‘Yes your Honour, I’d like to call on my next expert witness, Mr Hugh Everett III.’
      ‘Counsel, that man has been dead since 1982’
      *opens skype chat*
      ‘In this universe he has…’

  4. munkifisht

    Strictly speaking, if the multiverse theory holds then the Article is balls on the money.

    The whole thing though is beyond farce though. When the great and powerful can censure satire you are getting into territory the North Koreans are deeply familiar with. YEA! I SAID IT! DOB is the new Kim Jong Un.

  5. Clampers Outside!

    I think the burden of proving DOB has a “good name and reputation” should be placed on his lawyers.

    Surely you cannot sue for the loss of something you do not have.

      1. Clampers Outside!

        They’ll probably line up a few lackeys from the FG backbench to give evidence of his *sniggers* “good name and rep”… Hahaha !

        But no, seriously, he should have to prove it.

  6. Always Wright

    Think how this whole redacted saga might have played out in the days before the internet. This man moves to aggressively silence anybody who speaks against him, and he owns a pacman-shaped slice of the Irish media cake.
    I’d happily donate €30 to WWN to fight this case. Take him on, at the very least he’ll look like a vindictive fool.

      1. Always Wright

        Just ‘A Man With A Tiny Penis.’
        As in “A Man With A Tiny Penis has instructed his legal team to engage in a heavy-handed campaign against a popular satirical website. As a result of his actions the Man With A Tiny Penis is the subject of derisory comments on the internet.”

        1. Ferret McGruber

          I was thinking exactly that. The man must have a penis the size of a raisin. If he wants to prove otherwise in court let him go and drop his trousers in the High Court. I’ll lend them a microscope.

          Of course it’s not his penis that he’s worried about. It’s the small issue of his business being built on the shaky foundation of bribing M.L. If he’s innocent, methinks he doth protest too much.

    1. St. John Smythe

      I think she means if mention a person’s partner, instead of or as well as the person themselves, they tend to get more protective/vindictive/litigious.

      For example I’d say P. Flynn regrets mentioning Tom Gilmartin’s wife on the Late Late Show

      1. Ms Piggy

        Yes, I got that. But by saying WAGS instead of partner, it presumes that public figures are male. And yes it’s one small instance of that presumption, but it’s one of many and they add up and that does matter.

  7. Anne

    “Make sure that it’s so surreal that it couldn’t be true, ”

    She should go into stand up…

    But what to do when it’s very very surreal AND also true?

  8. Mr. T.

    RTE really turned that whole story into an anti social media set piece.

    They jump at the chance to rattle the chains at the general public who express unapproved opinions online.

  9. SomeoneElse

    Well I live in the US where you can say whatever the hell you want. And boy do they love to push the bounds of crazy with it.

    So here goes: *ahem*

    I hear [REDACTED] is into adult baby fetish.

    It’s a thing, go look it up (not at work though).

  10. rugbylane

    Waterford whispers has to defenses (a) Its satire and (b) its also true – at least the “factual bits” are true.

    Basically anyone can quote directly from the Moriarty Report without fear of being sued (sucessfully!) for libel.

  11. mulder

    Look i mean who is going to sue a turkey get Dustin yer only ehh, man so to speak on the case to pronounce, as unlikely he will be sued.
    Though on the other hand, if think about it, could he sue St Patrick as it is his fault he is ultimately responsible as he founded Ireland.
    Could we have an election to decide who Dennis should sue next or maybe we will be having that anyway in a few months.

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