Besides being a boring and predictable piece of television, Bastard Boys appears to have taken such liberties with the truth that it might prove a fertile ground for defamation.
Already, former ACTU Chief Bill Kelty has indicated in today’s Australian newspaper that he might take legal action to protect his reputation. And no doubt, former Patricks chief, Chris Corrigan, will have his lawyers casting a keen eye over the ABC’s much vaunted mini-series, given the lashing he gave the series on Crikey yesterday.
The producers of Bastard Boys and the ABC say that the series is merely drama, and not documentary. No doubt, they had taken some legal advice before running this “defence” against claims that the series may be defamatory in the way it portrayed certain characters.
But this “defence” appears too cute by half. It would be more accurate to portray Bastard Boys as a docu-drama, in which historical events were played out with actors. In fact, in the lead-up to the screening of Bastard Boys, last Sunday and Monday, the viewer was clearly left with the impression that the series was going to retell the events of the 1998 waterfront dispute, and that the lead characters would be portrayed accurately. This was the “inside” story on what really happened on the waterfront.
While the law acknowledges the right for creators of fiction works, or even works loosely based on facts, to take liberties in their portrayal of individuals and their actions, there is a limit. Why do you think that films and books which portray people in a dastardly light often wait until that individual is dead, before they go to print or roll the film.
So what might Mr Kelty, Mr Corrigan and anyone else who feels that their reputation or character has been unfairly maligned or impugned in Bastard Boys, do about it?
There is now a national defamation law and because Bastard Boys was shown in every state and territory of Australia, the choice of jurisdiction is really in the hands of the person who is suing for defamation.
Under the national defamation law there are a range of defences available to the ABC and the producers and creators of Bastard Boys. These include truth, fair comment and honest opinion.
While it remains to be seen if anyone will sue over the way they are portrayed in Bastard Boys, any legal action brought is likely to be defended vigorously by the ABC and the creators of Bastard Boys.
And what a fascinating case it would be – if Mr Kelty or any other plaintiff wins, it will be a reminder that there are indeed limits to freedom of speech.