Some defamation common sense

It was pleasing to see common sense prevail in two quite different defamation cases in two different countries in the last few days. In Adelaide a jury found two child protection advocates not guilty to charges of criminal libel. In London Sir Elton John lost a case brought against The Guardian over a spoof diary written by Marina Hyde.

The South Australian case was perhaps the more significant of the two. Criminal libel is a rather draconian way of curbing political debate even if the comments made are both very hutful and very wrong. 

Barry Standfield, 67, and Wendy Utting, 39, were the first people charged with the offence since the attempt to jail Rohan Rivett, the then editor of the now defunct Adelaide newspaper The News, 48 years ago. The pair were charged with four counts of criminal defamation over the faxing of documents on April 1, 2005, to the media naming two political figures and two senior police officers as alleged pedophiles. The court has suppressed publication of the identities of the men who all gave evidence during the criminal libel trial denying that they engaged in sex acts with children.

It is surprising to me that the case received so little publicity but there was a comprehensive summary in The Weekend Australian.

The Guardian case has more of a humorous touch about it with the spoof diary entry "A peek at the diary of Sir Elton John" having recorded his fictional thoughts about his annual White Tie and Tiara ball, which raises millions of pounds for the Elton John Aids Foundation.

"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," Hyde wrote, in the persona of the singer. "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."

Reporting the decision by Mr Justice Tugendhat, The Guardian said:

The singer, represented by solicitors Carter Ruck and, in court, by William McCormick, claimed that the article suggested that John's commitment to the charity is so insincere that he hosts the ball knowing that only a small proportion of the money raised will go to the charity, and that he uses the event "as an occasion for meeting celebrities and/or self-promotion".

It was also suggested that Hyde acted maliciously, as she was aware that the sponsors covered the costs of the ball and all the money raised - between £6.6m and £10m - went to the charity. In Hyde's "diary" she suggested that "once we've subtracted all these costs, the leftovers go to my foundation. I call this care-o-nomics." The Guardian, represented in court by Gavin Millar QC, denied John's claims and argued that the article had to be taken in context. It was also argued that no reasonable reader would have believed that the words were meant to be taken at face value. The judge agreed.

"The transparently false attribution is irony," said Tugendhat, in a 17-page judgment. "Irony is a figure of speech in which the intended meaning is the opposite of that expressed by the words used ... The attribution is literally false but no reasonable reader could be misled by it." The judge added: "Irony is not always a form of sarcasm or ridicule."

For the Guardian, Millar submitted that the words used were "obviously a form of teasing" and the judge accepted this. "The words complained of ... could not be understood by a reasonable reader of the Guardian Weekend section as containing the serious allegation [that only a small proportion of the money raised went to charity].

"If that was the allegation being made, a reasonable reader would expect so serious an allegation to be made without humour, and explicitly, in a part of the newspaper devoted to news."

The judge suggested that "if the Guardian were to expose a fraud of the kind that is alleged ... then such a reasonable reader could be sure that the exposure would be written without any attempt at humour". He added: "It is common ground that the meaning of words, in law as in life, depends upon their context."