Peter Bartlett, a partner at MinterEllison, told Crikey: "I think it's quite possible a jury will find it is defamation. She's certainly in with a chance ... I look at the photograph and would say it suggests she is not a serious politician." Bartlett notes public figures have successfully sued for defamation over photos that hold them up to ridicule. In 1993 a judge awarded rugby league player Andrew Ettinghausen $350,000 damages after HQ magazine published a photo showing his genitals (later reduced to $100,000). Ettinghausen argued the piece implied he had deliberately allowed the photo to be taken. Newsreader Anne Fulwood successfully sued Penthouse in the same year over a cartoon depicting her naked from the waist down. But Justin Quill of Kelly Hazel Quill said: "I don’t think the average reader would have thought any less of her because it was clear it was it was just a photoshopped image. Does it hold her up to public ridicule? I don’t think so. There was no attempt to pretend it was her – I don’t think it’s enough to justify a defamation action." Media law expert Mark Pearson told Crikey: "There is a poor track record in Australia when it comes to satire and defamation. Satire is very hard to defend." A notable exception is cartoons, which have traditionally been well-protected. Pearson notes Hanson-Young has several hoops to jump through. First, she has to prove the article was defamatory -- i.e. that a reasonable person would think less of her after reading it. If the jury found the article defamatory, Zoo could defend it on two grounds: fair comment/honest opinion and the implied constitutional right to freedom of political communication. The latter defence was not available in the Ettinghausen or Fulwood cases because they are not political figures. The political communication defence, however, didn't help the ABC's Triple J network which was ordered to stop playing the Pauline Pantsdown track Backdoor Man. "Since 1992 [when the political communication defence was introduced], there has been much freer criticism of politicians," Pearson said. "It could take a case like this to determine where the line gets drawn ... It comes down to whether the ordinary reader actually takes it seriously. The question is whether the reader sees it as a bit of fun or whether there is a reputational impact."
If Hanson-Young can sue Zoo, what about those Daily Tele shockers?
Sarah Hanson-Young has a good case against Zoo for a photoshopped bikini photo. And defamation lawyers tell Crikey the case could give other editors some pause for thought.