Laugh? I almost sued for libel

TV schedules are packed with comedy shows. But it's not so funny when the joke's on you.
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The Independent Online

Television broadcasting is proliferating at an enormous rate and producers and broadcasters have to tread increasingly carefully so as not to offend the viewing public. Here I intend to focus on defamation, particularly in relation to comedy programmes. Last week I acted for Fatima Whitbread when she successfully sued the BBC for "humorous" but defamatory comments made on the show They Think It's All Over.

Television broadcasting is proliferating at an enormous rate and producers and broadcasters have to tread increasingly carefully so as not to offend the viewing public. Here I intend to focus on defamation, particularly in relation to comedy programmes. Last week I acted for Fatima Whitbread when she successfully sued the BBC for "humorous" but defamatory comments made on the show They Think It's All Over.

Regulation of the television industry has developed with the times. There are innumerable sets of guidelines, codes of conduct and procedures to be followed - all designed to ensure that the programme content does not lead to legal action.

Commercial television is regulated by the ITC Programme Code. The 1990 Broadcasting Act states that the ITC has to ensure that nothing in its licensees' programmes offends good taste and decency. ITC licensees are liable for all material it provides for broadcasting. As one would expect, television programmes are very carefully "legalled". The BBC has extensive Producers' Guidelines to help ensure that programmes meet the highest standards. The BBC has a team of programme lawyers, and independent productions must conform to BBC standards. Responsibility for content of an independently produced programme rests with the BBC. Occasionally, the safety nets fail and defamatory material slips through.

Celebrities, politicians, industrialists (and even corporations) are in the public eye and therefore are seen as fair game. They are rich and famous, and criticism is a part of their lives - so long as it does not enter into libellous territory. The Law of Privacy is a hot topic, and with the Human Rights Act expected to come into force next year, those in the public eye should be better protected, and quite rightly.

So, when an untrue imputation has been made against the reputation of any claimant in a defamation action, will it lower him in the estimation of right-thinking members of society, cause others to shun and avoid him, or expose him to hatred, contempt or ridicule? These are the general tests, but it is rare that such matters are clear-cut. Of course, there are a whole host of available defences, the most often used of which are justification, fair comment and privilege. Additionally, the defendant can also rely on "jest" or "vulgar abuse".

The intention of the broadcaster of defamatory material is not relevant - it is how the viewer interprets the words. There is no doubt that using "jest" as a defence (in actual fact it is a denial of defamatory meaning) is a risky business. There is a considerable burden on the defendant to show that such words could not be taken seriously. The BBC Producers' Guidelines appreciate that "comedy enjoys special licence - and flourishes on departures from the norm in exploiting people's misfortunes. Even so, it must be well-judged and not gratuitous, unnecessarily cruel or designed to harm or humiliate." The BBC is a public institution and has to account to the public for its actions. As a defendant it would have an even higher obstacle to overcome in the case of a joke, as it has to prove that no injury whatsoever has been done to the reputation of the claimant. Of course, there are times when the defences mentioned above would come to the rescue of what would appear to be a particularly offensive and insulting comment.

It is rare to find somebody who does not have a skeleton or two in their closet. Libel actions, as we have seen in recent days, are only sensibly available to those of unblemished reputation. There are some soft targets, particularly people in the public eye known to have had extra-marital affairs, having been violent, having had liaisons (alleged or real) with prostitutes, and so on. There are also those who have fallen from grace and broadcasters often have a field day, with almost no fear of challenge.

Comedy will always push boundaries and challenge assumptions about taste and decency. Often it is correctly judged, and TV comedy would be the worse for over-restriction. It is a very fine judgment call as to whether or not a judge and jury will accept something as intending solely to be humorous. As Lord Justice Millett pointed out in a recent case, "Many a true word is spoken in jest. Many a false word too." Occasionally the words are both false and defamatory - which keeps libel lawyers in business.

Graham Atkins is a senior media litigation solicitor at London firm Campbell Hooper