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Advice to Mick Molloy: fake your apology better next time

Mick Molloy and Network Ten have lost their defamation battle against Adelaide identity Nicole Cornes in a ruling that could have far ranging implications for free speech, namely for the revelation that the law does not possess a sense of humour.

Despite Ten’s claim that the joke was “pure absurdist humour” the plaintiff’s success will force comedians to pause before making a crass comment about an individual in the future.

Cornes’ case centred on a 2008 broadcast of Ten’s Before the Game where Molloy joked that Cornes had slept with footballer Stuart Dew after Cornes said several flattering things about him in a newspaper article.

It was a classic Molloy moment. Disrespectful and stupid, but also reasonably funny. Well, sort of funny. It was certainly not meant to be taken seriously.

But Cornes, an unsuccessful ALP candidate in the 2007 federal election, was deeply offended by it. She claimed Molloy’s comment was humiliating as it questioned her fidelity. Her barrister, Stuart Littlemore, argued the comment impugned her self-respect and dignity.

Cornes was awarded $85,000 in damages, plus interest and costs. After the ruling, she told reporters “I just stood up for what I believed in, that’s the most important thing.”

A few things stand out from the case. The first is that Molloy’s intent was irrelevant. The fact that he and the program did not mean to imply that Cornes actually slept with Dew does not matter. What counts is how a reasonable member of the public interpreted the comment.

Having seen the offending broadcast, which Ten replayed yesterday, it is hard to see how a reasonable person could believe that Molloy was serious. Consequently no reasonable viewer would have believed that Cornes had slept with Dew. Therefore you’d think there’d be no case.

But Cornes’ case was assisted by her husband, former Adelaide Crows coach Graham Cornes, who told the court that the comment made him momentarily question his wife. He said “when somebody says something, even when you know it’s not true, there’s a shadow of doubt that crosses over your mind.”  He also said that despite having the “utmost confidence” in his wife, “that doesn’t mean it can’t be undermined by negative comments.”

Does this constitute proof that a reasonable person believed that Molloy’s joke was true? If the laughter in the Before the Game studio is any guide, the public clearly understood that Molloy’s joke had no basis in truth whatsoever. However, Littlemore told the court that “not every viewer is a man with a beer in one hand, a meat pie in the other” and that some of the audience don’t agree that “witty repartee passes as shouting ‘show us your t-ts’ at a woman.”

The South Australian Supreme Court’s Justice David Peek agreed with Littlemore, ruling that she had been defamed and that Ten and Molloy had no defence.

Molloy’s case was not helped by his belated on-air apology, which has been described as inadequate and insincere. One of the many sensible things about the Defamation laws, which were overhauled in 2005, is that they encourage apologies and allow defendants to use them as a defence if all else fails. So botching an apology these days is not a good idea.

The case highlights that our national defamation laws, unlike copyright laws, do not provide enough protection for comedy and satire. The case also highlights an anomaly where defamation cases in the ACT, NT and South Australia are not heard by juries. I suspect that if a jury made up of ordinary people had heard this case the outcome would have been different.

No one doubts that Cornes was offended and humiliated and that the joke was crass. But this does not mean that people making jokes — which audiences know are not true — should not have a defence to the charge of defamation. The special role of comedians and satirists was recognised in changes to the Copyright Act in December 2006, following another case involving Ten and the Panel program, on which Molloy was also a regular guest. I wonder if anyone has the appetite to extend similar protections to the law of defamation as well?

Molloy and Ten are considering the judgement before deciding whether to lodge an appeal.

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  • 1
    Carol Bruce
    Posted Wednesday, 6 July 2011 at 2:35 pm | Permalink

    Mick Molloy is not even funny - he is just a ‘try-hard’ comic. I really wonder why he is still on television. I cringe every time he opens his mouth on ‘Before the Game’!! So glad Cornes took him to court, and won.

  • 2
    Just Me
    Posted Wednesday, 6 July 2011 at 2:50 pm | Permalink

    Molloy is a mixed bag. When he is funny he is pretty good. But he is getting stale, bit of a one-trick pony.

    Sounds to me like he lost mainly because he did not do the apology thing properly, which is probably fair enough.

  • 3
    william magnusson
    Posted Wednesday, 6 July 2011 at 3:13 pm | Permalink

    i wouldnt think it funny , its about time comedians came up with better material other than slinging s**t on people

  • 4
    Aphra
    Posted Wednesday, 6 July 2011 at 3:27 pm | Permalink

    Nicole Cornes has suffered enormously at the hands of ‘the boys’ in the media. Pilloried, ridiculed and hounded during the 2007 election campaign, not one apology came her way when it was later revealed, on Australian Story I, that during the campaign she was giving evidence in a child sexual abuse case and that she was the victim, since age 5! Her abuser was convicted.

    An example of her treatment (from Australian Story transcript)

    (Excerpt from radio interview):
    RADIO ANNOUNCER: So, Nicole, what do you have to offer the people of Boothby?
    FEMALE VOICE: Well I’ve lived in Boothby for years and I’ve got a really, really killer rack …
    RADIO ANNOUNCER: No that’s too much …
    RADIO ANNOUNCER 2: Too much, Nick, love.
    RADIO ANNOUNCER: Split the difference.
    FEMALE VOICE: But I have got a really killer …
    RADIO ANNOUNCER: Well I know you have but people don’t vote for them.
    RADIO ANNOUNCER: (Laughs) Nice one stud.
    (End of excerpt)

    A story by Michael Owen and accompanying photo which appeared in the Adelaide Advertiser and defended by its editor Melvin Mansell was described by Nicole Cornes thus:

    And he says, “So I understand that you’ve been sexually abused and you’ve just gone through a court case. Can I ask, who was it?” I was completely shell shocked. At that moment, I’ve teared up, the photographer’s clicking away madly from across the room. And Michael Owen knew that he couldn’t write a word of the court matter because it was suppressed. And I’m a victim and protected by law so why ask me about it?’

    The picture of course, showed her as teary and sad and female and obviously not up to the job.

    Erstwhile Senator Stott-Despoyer’s comments:

    I do worry about the message that the treatment of Nicole Cornes sends particularly other women. This is not about being precious as a politician, as a candidate, as a woman in public life. But it is about an element of fair treatment, and the treatment to which she was subject was unlike anything we’ve seen in this State, if at all, and certainly for a long time.’

    Obviously, Nicole Cornes had had quite enough of ‘jokes’ at her expense. Crass comedians who intend to sneer at others for cheap laugh at least have a duty to find out something about their intended targets first.

    Our defamation laws should provide more protection for comedians? What about protection for women from uncouth, unfunny, unaware and unattractive comedians?

  • 5
    tone16g
    Posted Wednesday, 6 July 2011 at 3:34 pm | Permalink

    Mick Molloy is a dill. He’s never been funny.

  • 6
    Maria Jonsson
    Posted Wednesday, 6 July 2011 at 3:35 pm | Permalink

    She said some nice things about this guy therefore she must be sleeping with him doesn’t sound like much of a joke to me. Is it okay to make a sexist and potentially damaging comment because it’s just a joke and you don’t really mean it? Good on her for calling him out on it.

  • 7
    SBH
    Posted Wednesday, 6 July 2011 at 3:46 pm | Permalink

    good work Mick. Shame you couldn’t have slipped a gay joke in there as the cherry on the cake

  • 8
    Sancho
    Posted Wednesday, 6 July 2011 at 3:56 pm | Permalink

    I can’t stand Mick Molloy. He’s an intelligent and genuinely funny man who makes a living by trying to be unintelligent and unfunny for the entertainment of his cro-magnon audience.

    That said, the defamation claim is bollocks. Molloy should simply apologise for being crass and shallow.

  • 9
    Posted Wednesday, 6 July 2011 at 5:06 pm | Permalink

    Where does this leave mad Monckton’s (serious, unapologetic) comments about Ross Garnaut I wonder? If someone called me a fascist, implying I was linked to Nazism I’d be suing their goolies.

  • 10
    Arty
    Posted Wednesday, 6 July 2011 at 5:17 pm | Permalink

    Crass and shallow isn’t an offence. Defamation is. The courts got it right.

    Sorry” is the cheapsters meaningless escape.

  • 11
    LunaticWaffle
    Posted Wednesday, 6 July 2011 at 6:11 pm | Permalink

    Although I dont find molloy funny defamation is about compensating for damage to the victims reputation. I fail to see the harm to her reputation here, her feelings certainly but that isn’t the role of these types of claims to rectify. The only reputation harmed in this instance is Molloy’s, however, suing himself might be simultaneously the funniest and sensible thing he has done for years .

  • 12
    Terry Simons
    Posted Wednesday, 6 July 2011 at 7:14 pm | Permalink

    I don’t see that laughter of the audience necessarily means that it was taken as a joke. Perhaps they thought it was both true and funny. The law refers to how a reasonable member of the public would interpret the comment not a the boganatti.

  • 13
    zut alors
    Posted Wednesday, 6 July 2011 at 10:19 pm | Permalink

    Thank god I don’t watch the Ten Network and have never suffered the wit of Mick Molloy.

    The media appears to treat Cornes as an easy target.

  • 14
    Angus McTavish
    Posted Thursday, 7 July 2011 at 12:15 am | Permalink

    molloy is definitely past his prime, but i have no idea how anyone could assume that his statements were true. anyone watching this show must realise that it’s a comedy and that molloy is a comedian, funny or not. crass and shallow aren’t offenses and in context this wasn’t defamation. chalk another one up for the humourless stupidity of political correctness. get a life.

  • 15
    Neil Walker
    Posted Thursday, 7 July 2011 at 3:41 am | Permalink

    That law is an ass. A massive ass. (Not a sexist comment)

    Hopefully Channel TEN will appeal. Anyone who saw the original broadcast knew Mick Molloy was joking. The Footy Show (mostly Sam Newman) on Ch9 has been getting away with far worse for years.

    Before The Game is not a mean spirited show. Best footy show on commercial TV at the moment.

    As for Graham Cornes’ laughable testimony, the less said the better since he seems to be such a precious petal. Didn’t he used to be a tough footy player?…

  • 16
    claudedwalker
    Posted Thursday, 7 July 2011 at 8:41 am | Permalink

    Defamation doesn’t require that people believe she actually did sleep with him. Even if audience members think that she might have, or would, if given the opportunity sleep with him, that is enough to be defamatory.

    Given the audience of the show, I think its extremely likely that many “reasonable” people would conclude that, although she didn’t actually sleep with him, her comments (as quoted by Molloy) imply that she would like to, or might sleep with him. Essentially, the implication is that any admiration expressed by her means that she wants sex with the person (even if she doesn’t have sex). I think thats a pretty reasonable conclusion to draw from Molloy’s routine - even if it is a bit tongue in cheek.

    To suggest that Molloy was being a satirist is ludicrous. There is a difference between satire (e.g. most of the chaser) versus crass, cruelty (e.g. the chaser’s sketch about kids with cancer, for which they got taken off air).

    Some things, even as a joke, are not ok. That should be obvious. This has nothing to do with freedom of speech.

  • 17
    Arty
    Posted Thursday, 7 July 2011 at 1:55 pm | Permalink

    Shakespeare and Verdi both understood.

    Otello.

  • 18
    Posted Thursday, 7 July 2011 at 6:24 pm | Permalink

    I’m not sure the court did get this one right but as it’s Molloy being impacted I can live with it

  • 19
    Edward James
    Posted Wednesday, 13 July 2011 at 3:20 pm | Permalink

    What a shame with all the input from mainstream media and stakeholders, the defamation laws were only overhauled in 2005 but not standardized nationally! How hard would it have been for our Federal Government legislators to put a stop venue shopping and all the other vagaries which follow defamation claimants and their defendants from court venue to venue ?

  • 20
    Edward James
    Posted Wednesday, 13 July 2011 at 3:21 pm | Permalink

    What a shame with all the input from mainstream media and stakeholders, the defamation laws were only overhauled in 2005 but not standardized nationally! How hard would it have been for our Federal Government legislators to put a stop to venue shopping and all those other vagaries which follow defamation claimants and their defendants from court venue to venue ?

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