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Jul 6, 2011

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.

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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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