Last year’s hit mini-series Paper Giants — the Birth of Cleo may have won its lead actors a stack of awards and rated its socks off, but it has cost its producers Southern Star and the ABC an undisclosed amount in a defamation case settlement.
Alasdair Macdonald, the ex-husband of Ita Buttrose, whose career rise is charted in the program, launched a defamation case against the producers claiming that “a slur” was cast upon his reputation by claiming he had left his wife when she was pregnant.
“In marriage the worst thing a husband can be accused of is deserting his wife while she is pregnant, and in my case, deserting my wife and young daughter at that time, especially if it is not true,” said Macdonald in a statement read by his lawyer yesterday. Macdonald says he had to continually explain to friends, family, strangers and even his own children that the events depicted were not correct.
Crikey understands that questions were raised by the ABC and Buttrose about the accuracy of events when the script first appeared in the production process. Paper Giants was a co-production between Southern Star and the ABC, but Southern Star did not respond to Crikey‘s calls before deadline. The co-production and resulting payout could raise further questions around the ABC and outsourcing, especially given that the public is not entitled to know the details about the settlement split between the ABC and Southern Star.
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Buttrose gave Crikey a firm “no comment” when contacted this morning, but also noted that she was not involved in the case and it was the ABC who had been sued, not her.
The case did not go to trial and an out-of-court settlement — with confidential terms — was reached yesterday.
The ABC sent Crikey a copy of the apology read out in court yesterday (which will also be screened on the ABC on Sunday):
“Recently the ABC broadcast Paper Giants — the Birth of Cleo, a dramatised account of Ita Buttrose’s founding of Cleo magazine. The program depicted Ms Buttrose’s first husband Alisdair Macdonald, abandoning her at the time of the birth of their second child. The ABC and Southern Star, the producers of Paper Giants, accept that this is untrue. The ABC and Southern Star withdraws those suggestions unreservedly and apologises to Mr McDonald and his family for them.”
But the fact that it’s “a dramatised account” of events doesn’t actually help the case, according to Minter Ellison media lawyer David Poulton. “By dramatising it, you may well be seen to case that person in a negative light unfairly, with no right of reply. It’s fraught with difficulties if you are going to turn a real person into a villain in their view,” Poulton told Crikey.
A dramatic telling of real events can have difficult legal repercussions. “It some ways can make it more difficult because you are inherently fiddling with the truth,” said Poulton. “To the extent that you’re changing that person’s character in the negative, you’re giving up one of your defences which is truth.”
The ABC confirmed that the Paper Giants DVD has been withdrawn from sale, but this was only suspected to be a temporary arrangement while the settlement was finalised.
There has been few historical cases of Australians claiming they were defamed after a semi-fictionalised account. Back in 1997 Pauline Hanson took out an injunction over the song “Backdoor Man” by satirical artist Pauline Pantsdown. The song was a mash-up of quotes from Hanson and its lyrics included: “I’m a back door man; I’m homos-xual … I’m a back door man for the Klu Klux Klan with very horrendous plans, I’m a very caring potato.” The song hit number five on Triple J’s Hottest 100 chart in 1997.
When the Hawke biopic was screened on Ten in 2010, Sue Pieters-Hawke — daughter of Bob and Hazel Hawke — reacted to the portrayal of her mother in both the miniseries and the biography on which it was based (a book penned by her step-mother Blanche d’Alpuget).
As Pieters-Hawke wrote in The Age at the time:
“… a line has been crossed, a legacy hijacked, and a lot of people are seriously unimpressed. The part I take particularly personally is a suite of comments and insinuations about my mother Hazel. Their effect is to invite a rewriting of history on the basis of a series of inaccurate premises…
“The reason for this is that things have been said, and people portrayed, in a manner that fundamentally misrepresents their character…
“All I can ask is for you not to take telemovies seriously as representing what really went down or the experience of people who were actually there.
So could Hazel Hawke conceivably have launched legal action against the producers of the documentary like Macdonald has done?
To defame someone you have to say something which damages their reputation, makes people want to avoid or shun them or which might hurt them in their profession.
Hazel’s withdrawal from public life and her advanced dementia would make it difficult to prove that she’d suffered a loss from the book or film (although it could be argued that her reputation was damaged). Only the individual affected (or their guardian) can launch defamatory proceedings — hypothetically, Hazel’s children could make a defamation claim on their mother’s behalf if they were her legal guardians, but they would be unable to make a claim claiming that they personally suffered damages as a consequence of the defamation of their mother.
“Usually with defamation, if you have to ask the question ‘has someone been defamed’ usually the answer is yes, because you thought of it. It might be very mild defamation but anything that reduces a person’s reputation in any way is capable of being held defamatory,” said Poulton.