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Explainer: FAQ on the legal implications of satire in Australia

It might seem like a harmless humour, but satire has the potential to get people into serious trouble, as Max Williams explains.

So, what exactly is ‘satire’?

Satire is eloquently summarised in the book Connect + converge: Australian media and communications law as ‘a form of expression that seeks to expose foolish or narrow-minded or objectionable behaviour by exaggeration or mimicry. Satire makes a comment on society – including its culture’.

Sounds legal to me. After all, it’s just a joke, right?

Satire can be perfectly legal, but due to the nature of how it works, it often skirts close to a number of legal boundaries and sometimes crosses the line.

What legal boundaries?

Defamation for one thing.

What’s that?

The publishing or spreading of false information that could damage someone’s reputation, cause them harm, or lead to them being shunned, harassed or disliked.

So if what you say is true, it’s not defamation?

Proving that the information was ‘substantially true’ is often considered the best defence against defamation charges.

So it’s illegal for a satire to exaggerate to the point where it is no longer ‘substantially true’?

Not necessarily. It does prevent those responsible for the satire from using that particular defence if they are charged, but there are other defences against defamation charges.

For example, defamation law has a principle known as ‘vulgar abuse’, which says that excessive and/or irrational statements can’t be defamatory because they wouldn’t be taken seriously.

This defence is not foolproof, however. In 1997, a satirist and Senate candidate Simon Hunt released a song called Backdoor Man which satirised Pauline Hanson’s controversial political views by rearranging her quotes into lyrics that suggested she was homosexual, a prostitute and a member of the Ku Klux Klan.

Hanson responded by claiming defamation, and despite the defence that the song’s content would not be taken seriously by an ordinary reasonable person, an injunction was granted by the Supreme Court of Queensland, preventing the ABC from broadcasting the song.

Despite this, exaggerating to an outrageous degree is often considered a good idea by satirists, the logic being that if it’s outrageous, it’s less likely to be taken seriously and hence less likely that someone will press charges.

What are the penalties for defamation?

If the defendant is found guilty, the court can order them to pay damages to the plaintiff. Under the 2005 Uniform Defamation Law, the limit for general damages is $250,000, though the court can order that this limit be exceeded if they feel a larger amount is justified.

There are also special damages, intended to recompense the plaintiff for any money they lost because of the defamation, as well as  aggravated damages, which the court can award if they find that the defendant acted deliberately, perhaps out of malice.

Organizations are generally made to pay larger damages than individuals.

In addition to legal penalties, satirists can also find themselves fired from the media agency they work for.

What other legal issues can satire encounter?

They include copyright infringement, injurious falsehood, anti-discrimination laws and anti-vilification laws.

So you can’t use copyrighted material?

Actually you can, provided you follow certain guidelines. Obtaining permission from the copyright holder is the most obvious solution, but failing this, there are ways in which copyrighted material can be used even without permission. This is called fair dealing. Unfortunately, it can be a very risky proposition.

In cases of satire, the Australian Copyright Council advises that the following be taken into account when deciding whether use of copyrighted material constitutes fair dealing:

–        How much of the material is being used or reproduced.

–        The size of the audience and subsequent level of exposure.

–        Whether the copyright holder would usually allow such use.

This area of fair dealing law is open to substantial interpretation, and won’t protect against claims of breach of a copyright holder’s moral rights should they find your use of their material to be harmful to their reputation or derogatory.

What are the penalties for copyright infringement?

Under Australian law, individuals found guilty of copyright infringement can be fined tens of thousands of dollars – or even more under specific circumstances, such as the ‘digitisation of copyrighted material from hardcopy’ – and face up to five years imprisonment.

Corporations can face fines as much as five times higher than an individual.

What’s injurious falsehood?

It’s basically an economic version of defamation; publishing or spreading false information that could damage somebody’s business.

There are some key legal differences compared to defamation, though. Perhaps most importantly, the plaintiff must prove that actual economic damage took place as a result of the defendant’s actions, while in defamation, damage to someone’s reputation is assumed once it’s been proven that the defamatory material was published.

The plaintiff also has to prove that the defendant acted with malicious intent.

And what penalties can you face for that?

As with defamation, the defendant can be made to pay damages to compensate for the plaintiff’s economic losses.

What about anti-discrimination law, how does that fit into all this?

Anti-discrimination laws include legislation like the Racial Discrimination Act of 1975, which prevents people from being treated differently based on factors such as race, immigrant status, colour or descent.

Satires that are accused of breaching these laws are defendable due to statutory exemptions. Section 18D of the Discrimination Act says that it ‘does not render unlawful anything said or done reasonably and in good faith … in the performance, exhibition, or distribution of an artistic work or … in making of publishing a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.’

This defence was successfully used to defend a satirical cartoon published in 1997 in the West Australian. A complaint was made to the Human Rights and Equal Opportunity Commission (HREOC) that the cartoon was offensive to the indigenous people of the Perth area, but the complaint was dismissed because the cartoon was found to fall under the ‘artistic works’ exemption in the Discrimination Act.

In the context of section 18D, ‘good faith’ means that the defendant did not act out of malice or a similarly improper motive. If satirists can show that they were aware of the potential harm their work might cause and took steps to minimise it, this can help them defend charges of discrimination.

So all in all, satire is a risky business, legally speaking?

Yes it is. Many people feel that current laws aren’t well suited to dealing with satire. For example, in their book Connect + converge: Australian media and communications law, Scott Beattie and Elizabeth Beal point out several examples of inconsistency and openness to interpretation affecting legal cases involving satire.

Former judge Tony Fitzgerald said in 1988, ‘Satirical humour is extremely vulnerable and involves a degree of legal risk, using distorted fact as a façade for criticism intended to cause discomfort to the target. The law needs to develop sophisticated responses, which do not unduly inhibit the true message which readers, listeners [or] viewers have the wit to comprehend.’

While there have been changes to the laws that deal with satire since then – such as the 2005 Uniform Defamation Law touched on earlier – many argue that the current system is still far from ideal.

The full list of upstart’s explainers can be found here.

Max Williams is a post-graduate Journalism student at La Trobe University. 

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