A Storm In A Cloakroom

A Storm In A Cloakroom

Comedy, it’s the last bastion of free speech isn’t it?

Well you might have thought so, if you go to stand up shows, you’ll hear all sorts of jokes and opinions from comedians from politically opinionated routines, gags about celebrities, and downright sick humour all the way to the outright childish gags and silly puns.

Should comedians be concerned about the subject of their jokes? Every gag has a target after all. Are comics defaming their subject, or can they defend themselves by saying “I was only joking”

Just this week in comedy clubs I’ve seen comics talk about their ex-partners in a derogatory way, accuse politicians of lying, accuse celebrities of doing all manner of naughty things, say that their ex school teacher was up to all sorts of inappropriate stuff, suggest that the builder who came to fix their kitchen was a cowboy… and much more.

All of the routines involved naming the person involved.

There seems to be a fine line between making a joke and defaming someone.

 

My Flyer for my show

In my case I did my Edinburgh show last year in a venue called “The Staff Room” at the Three Sisters. The venue literally was the staff cloakroom, it held roughly 20-25 people squashed in to the place, some of the staff even had their coats hung up next to where the comics performed. 

Most Edinburgh shows involve some kind of story telling and on the last night of my show I made a joke, which got a big laugh, about someone I used to work with.

A few weeks after my show was over I was surprised to get a letter from a solicitor which said that I had defamed the person I made the joke about and that I should pay £1,000 to the charity of his choice and never make the gag again, and even went on to name upcoming shows at which I should not say the joke.

Naturally I was offended that anyone could pluck a figure of £1,000 out of fresh air, expect me to pay it; and also try and stop me from saying something.

On reflection I have better jokes than the one I said, and it only works in the context of the show, so I was unlikely to say it again anyway.

I phoned up Equity, I had been a member for 20 years. My local representative would be sure to sort it out wouldn't he?. 
His advice was "Oh well you'd better pay up..." WHAT! I was seething was that it? Pay up? For what? I thought Equity was there to help me. Well stuff Equity, I got onto someone who knew what he was tlaking about

I had to seek legal advice from a nice chap who sorted it all out Barjinder Sahota, from Sahota’s solicitors in London. He wrote to the offended party and got them to back off, and suggest that its wrong for them to say whether I can make a joke or not.

Ultimately the offended person would have to pay his solicitor to get £1,000 from me regarding a joke heard by 20 people in a cloakroom-not worth the cost or the hassle.

Had this gone a step further usually solicitors suggest that it is worth following the patch of mediation where the parties agree a solution and don’t go to court. Going to court and speaking about matters in public can actually further damage someone’s reputation

So I put a few questions to Mr Sahota to see if he could help comedians out.

What is Defamation?

Defamation in a nutshell is where you overstep the mark in hurting someone's reputation without proper reasons allowed by law such as truth or where you have a duty or interest to talk about it.

What is the difference between libel and slander?

Libel is a communication in permanent form ie writing; slander is if the communication is transitory ie verbal communications (unless they are spoken on tv or radio when they become permanent and so the slander becomes a libel too).

If you tell a joke about someone and they think it is defamatory what can they do?

Well, they could 'sue the pants off you' if it happens to be defamatory and you don't have a good defence... but joking aside a joke should be kept a 'joke' and no-one, if you tell it as a joke, should take it seriously but if you are going to tread on a named person's toes by making any factual allegations about their character, then, it may be best to get it checked out by lawyer'.

What is the worst that could happen to a comedian if they tell a joke on stage, and the subject of the joke thinks it is defamatory?

If the comedian is rich then he may lose a  month's work of money (so no big deal), if he is poor, then perhaps he should retire and go on the dole... but seriously, is successful defamation could mean the tens of thousands of pounds in damages, and, if you have a house, you may lose that... so consequences can seriously damage the you wallet and your home.

What is likely to happen?

Well if you get good early legal advice then the likelihood is that if you have a good defence then you should not be too worried - but if you don't, even then providing you get good early legal advice, a lawyer can guide you through the legal minefield, and most likely you will soon be back on stage... and actually end up having the last joke.

Is it worse for the comedian if a joke is said in a small club, or a large theatre or on TV?

The size and 'target' audience is an important factor when it comes to how serious the libel is viewed, especially on the issue of size of damages... the bigger the audience the bigger the damages but if they are your immediate peers or people who are important to your career or life, then even a small audience (say 20 people) can attract damages of over £20,000.  Also if the libel is repeated by others who heard it from you then you could be held liable for the spread or repetition of the libel.  So what started off with 20 people could end up heard by thousands, for which you may be held liable if a causal link can be established.  Generally though the smaller the audience the safer you are.  If you say it on TV or in a large theatre then you can not use size in mitigation if someone sues.

So do you have any guidelines for comedians in what is a “grey area” of free speech v personal reputation

(some comedians are very political and want to make a point)

This is a very nuanced and complex question and it's difficult to generalize. However it should be safe to attack policies but not the personal integrity of the politician.  But in reality many politicians like being 'joked about' , so long as it does not go to their intergrity or honesty, as it gives them publicity... but the clever comedians are not so direct, they can their cracks in at the expense of the politicians who don't even realise it.  A subtle joke is worth ten blunt ones...  The debate of free speech and the right to personal reputation belongs in the lecture theatre not the comic hall.. .so lets keep the two apart, I say 'joke away and be damned'.  But seriously if you are going to attack a prominent politician's integrity or honesty, even as a joke, its best to get some legal advice first'

A comedy audience not being offended

If some one is in the public eye such as a celebrity or a politician, are they fair game for any comments?

See above... but I would add that they are not 'fair game' since if sued you have to prove the words were comment as opposed to any factual allegations. Also the comments have to have some basis on facts which are true.  But for the comedian the better defence would be that no one would take the matter seriously, as the whole context was a joke, and or just vulgar abuse which again no reasonable listener would take seriously.

Is a celebrity's reputation easier to mock?

Or are they more likely to sue than a member of the public?

Does  the problem really lie where you name someone?

Everybody who is anybody has a reputation to protect but those in the public eye generally have more to lose and so are more likely to sue for that reason as well as having the money to do so.   Even if you don't name the person... you can still get into a lot of trouble if it can be proved that a sufficient number of people knew who you were referring to. So anonymity of the target subject will not necessarily protect you.

Some examples

If I say on stage “I think the Daily Mail is racist” could they sue?

Most likely not... as the Mail would probably just ignore you - this would also come in the category of vulgar abuse and something that no one is likely to take too seriously, or your honest comment - though in a different setting being called a 'racist' could land you in court.

If I say “I think journalist X who writes in the Daily Mail is racist” could they sue?

Yes, this could be a risky allegation unless you could defend with some examples of how and why you believed this.

If someone says on stage “Jeremy Clarkson is racist” could he sue?

Yes he could sue but then again you would have the defence of it being only a joke or vulgar abuse.  Anyway would Clarkson sue?

If Jeremy Clarkson insults an entire nation in a TV broadcast could the entire nation of say, Mexico sue him or the BBC?

No, this would be too broad a group.   Only individuals or an identifable (ie by name) group of individuals can sue - so Clarkson can slag off a nation with impunity.

Trials

Whilst a trial is ongoing all we can hear from the press is a fair accurate and contemporaneous report of court proceedings.

If a newspaper were to print stories about the background of the trial whilst it is going on would they be in contempt of court? as a juror could read their article.

Most likely not, the paper is free to print a report of the court's proceedings - the juror on the other hand could be in trouble as they are not suppose to do research or read media reports on their case whilst it is ongoing.

But would a comedian be in contempt of court if they made a joke or gave away any background material to the trial whilst onstage in a comedy club? For example Fred Talbot the TV weatherman is now on trial, I live in Manchester, he stands accused of sexual acts with young boys in the Manchester area. There are jokes “doing the rounds” about him in Manchester at the moment, can we speak about this trial on stage?

You would be on dangerous territory to comment on ongoing trials - and could be in contempt if a Judge thought you were trying to influence the trial for or against the accused. I'd advise to wait till the trial is over.

What do you think of these jokes? they were broadcast on TV or the internet

Are they defamatory? Could they result in legal action?

 https://www.youtube.com/watch?v=ZZb_POyXd1Q

Jimmy Carr

“They say there’s safety in numbers, yeah, tell that to 6 million Jews”

Bad taste maybe but not legally actionable in my view...

Frankie Boyle

(impersonating the Queen ) “I’m so old my pussy is haunted”

The BBC had many complaints about this joke, in an enquiry they found that it WAS offensive but took no further action as it was on a tv show after 10pm

Again very poor taste... and obviously offensive..but the Queen would not sue.

Frankie Boyle

on “TV shows you would never see”

“Later Vanessa Feltz will be joining me on the settee and I’ll be bouncing through the F**** ceiling

Bad taste, vulgar abuse etc... but in any event I doubt if she has any intention of suing - I think?

Frankie Boyle

on “TV Shows you would never see” “….And now over to Kate Humble who is going to kick the face off a badger”

In the bad taste, vulgar abuse defence category.

Frankie Boyle

“Things you would never hear on the radio”

“…What a hilarious singing dog…Susan Boyle is”

See above... maybe bad taste, but clearly is vulgar abuse and not to be taken seriously.

Frankie Boyle

“If I wanted to see people opening empty boxes I’d spend Christmas morning at Kerry Katona’s house

Probably could get away with it as vulgar abuse, so not to be taken seriously.

A Comedy Club

A Song about Boris Johnson

If someone sings a song called “Boris Johnson is a C-word” could Boris sue?

I doubt if Boris would sue, but this is vulgar abuse and in any event no mainstream station would allow it.

How can “Mock the week” have a “Too Hot for TV” DVD on sale? If the material is offensive then why do they sell it?

Mainstream channels have duties of taste and decency and other obligations to fulfil under the licence terms from Ofcom and other regulators - a DVD which is sold independently may be able to exclude itself from these obligations.. but I have my doubts about this being independent.  I suspect the real reason for giving it this "Too hot for TV" label is to boost its sales.    It would be subject to the same laws of the land even if outside the ambit of Ofcom and other regulators.

Peter Kay case

 http://www.telegraph.co.uk/news/uknews/1320371/10000-damages-for-fire-officer-who-was-put-out-by-Channel-4.html

CHANNEL 4 paid £10,000 compensation to a fire safety officer who said a hapless character in Peter Kay’s comedy series was based on him. (Daily Telegraph)

 What’s your take on this case? Hasn’t the Fire Safety Officer actually further damaged his reputation by taking this case to court?

I rather not comment on this one... on my own legal advice. However I just say that anyone who sues, risks spreading the libel (albeit its done with the intention of getting vindication) far further than not taking any action at all - however some libels will spread a lot more unless you take action to stop them.

Katie Price

 http://www.theguardian.com/media/2010/dec/10/katie-price-frankie-boyle-joke

Katie Price threatened legal action against Frankie Boyle after he made a joke about her disabled son

Clearly very bad taste whatever you think about Katie Price - I don't know the outcome of the threatened action.

Comedian and Comedy Audience

Mother in Law

In America, a comedian was sued by her mother in law for telling too many jokes about her

 http://www.today.com/id/32567262/ns/today-today_news/t/no-joke-comic-sued-over-mother-in-law-gibes/#.VM1P69KsWSo

Could this happen in the UK?

This one is really funny (saw the clip)...  I'd be happy to defend any comedian feeling set on by their mother-in-law.... joke.   I say.. joke away. 

High profile comedy club advertising

SO to sum up do you have any guidelines for comedians?

Well just stay away from personal attacks - and if you have money.. get legal advice on your gags.. if you have any concerns

Many comics tend to walk a fine line along this path, have a few drinks before you go onstage and let your big mouth run away with you and things could turn nasty, perhaps best not to name the person in the “True story” told onstage. Or if you are going to name the person in the routine you’d best make sure that it is true

If you have a problem, and no one else can help, and you can find Mr Sahota, it’s not too difficult really,

…his office is on the Strand in London. http://www.libel-law.co.uk
#barjindersahota Sahota Solicitors (@LibelSolicitor).on twitter