Hard-hitting programmes such as Spitting Image or Pallas push comedy to the edge of what is legally permissible.
Lawyers working with programme-makers during production are not just expected to steer clear of defamation. They must also advise on other matters of programme content, including language and taste. The Independent Television Commission and BBC codes are widely drawn, so it often comes down to a lawyer's gut reaction. It is easy to be overcautious, which could frus-
trate the creative aims of the
A defamatory statement is defined as one that tends to lower someone in the estimation of 'right-thinking members of society', cause him or her to be shunned, bring him or her into 'hatred, ridicule or contempt', or discredit a person in their profession or trade. The difficulty lies in trying to reconcile this traditional definition of defamation with the general perception of comedy as something not to be taken seriously. The courts have provided several examples to show that satirical statements can be defamatory. Private Eye, for instance, was successfully sued by Nora Beloff, the Observer's political correspondent, over an article that the magazine claimed was 'obvious rubbish, a jest, a joke'.
Television comedy and satire present more complex issues than the printed word, since the context, speaker, delivery and audience reaction are all relevant in determining whether a statement is defamatory. Would a remark apparently made by a latex puppet cause right-thinking members of society to shun, ridicule or discredit someone? Would anyone bring proceedings for defamation based on an outrageous joke made during a comedy panel game before a laughing audience?
The answer will depend on several factors that combine to determine how a particular statement is received. Features of comedy - exaggeration, audience laughter, cartoons, puppets - all help to ensure that the statement is not capable of being defamatory, either directly or by innuendo.
The position is far less clear when humour turns to satire, or when the context is not always obviously that of a comedy programme, as in the case of Pallas, which used news footage of the Royal Family clipped into a spoof soap opera with voice-over artists. There was no canned laughter and the lip-synchronisation was often uncannily close.
Television allows the viewer to switch on, watch a brief extract and switch off without necessarily understanding the context. For Pallas, the risk was that a person appearing in the programme could apparently be making a real-life statement that a channel-hopping viewer would see without appreciating that it was part of a comedy programme.
Working on the first series of Pallas, broadcast in 1991, was particularly challenging since it was to have little advance publicity and could easily have been misunderstood. In acting for the production company, Noel Gay Television, I spent many hours in discussions with the producer and scriptwriter. There were clearly problems in the script where people appeared to make defamatory statements to one member of the Royal Family about another, and these were altered.
Others came to light once the voice-over was combined with the footage, such as when an announcer at a polo match said into the Tannoy, 'Please get the dog off the course', as a member of the Royal Family was walking across the ground. This was cut. I also attended the final voice-over session to discuss revisions to the programme, to see how they worked in practice.
During production of the second series, it helped that the programme was more widely known and channel-hoppers would be less likely to take it out of context. However, the scriptwriters, understandably, wanted to go to the limit, encouraged by the recent activities of the Royal Family, which had dramatically increased the show's comic potential.
One courtier, who appeared in both series, caused much discussion. In the first, he appeared to be saying 'Up your mac', and in the second, he was apparently arguing with another courtier over whose girlfriend the Queen was. Both incidents were borderline, but we felt that, since the researchers were unable to identify the courtier and the lip-synchronisation was extremely good, there was a risk of defamation, particularly if the courtier were known to be of high moral standing. The extracts were omitted from the television programmes but left in the video versions because it is unlikely that anyone would fail to realise that they were comedy programmes.
There has been no recent defamation action arising from a comedy programme on television. Even if such an action were brought, the attendant publicity would probably be more damaging than the alleged defamatory statement itself. Broadcasters and producers may also take some comfort from the fact that defamation actions can be a lottery. In some cases the jury has awarded substantial damages, while in others the awards made were less than the sums offered by way of out-of-court settlement, with plaintiffs facing hefty legal bills.
Scriptwriters will continue to push comedy to the absolute limit, and a jury may eventually be asked to determine where the line should be drawn. The perception of comedy has been considerably broadened by programmes such as Monty Python, Saturday Night Live, Have I Got News For You and The New Statesman.
Accordingly, I believe that right-thinking members of society are likely to have an increasingly robust sense of humour. Potential plaintiffs beware.
The writer is a solicitor and partner in the media and entertainment group of Cameron Markby Hewitt.
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