Defamation and Discrimination – Funny Ha Ha

I've just been reading a research paper recently published by the Social Science Research Network – "Just a Joke: Defamatory Humor and Incongruity's Promise" by Laura Little, Temple University.

That reminded me of a client I defended years ago. My client had a small bakery. The bakery was run by a husband and wife team and they employed casual staff to help out. The apprentise baker was popular with them and was moving on to bigger and better things so they decided to do something a little special for him at their Christmas party.

This was the early 1990s when graphic design software programs were first becoming accessible to the general public. My clients created a "Playboy" magazine cover with the apprentice baker in the centre of the picture and two of the female members of staff as supporting characters. These supporting characters had had their heads superimposed onto naked female forms cosying up to the central male figure. The image actually looked great, was thought by all and sundry to be an hilarious joke, and was proudly shown off to well known customers by one of the ladies featured.

Unfortunately, the same lady who had been proudly showing off the doctored photo (after she had specifically asked for a copy), later sued my clients for discrimination and sexual harrassment. I successfully defending my clients, who were nontheless disillusioned by the whole process.

So when is a joke a joke, and when does it become a legal risk?

The research paper looked at things from the perspective of defamation claims. In the US, the courts have a tendency to look at claims firstly to see whether or not the claims are true, and secondly to see whether or not they form opinion, or statement of fact.

As you can imagine, it is not an easy thing sometimes to tell the difference between what could be interpreted as a statement of fact and what could be interpreted as simply an expression of opinion. After all "many a true word is spoken in jest". The US also has to take into consideration the right of free speech.

Is it right to say what you like, to hell with the consequences?

In Australia, the focus is more on whether or not there has been detriment to the person defamed. Also in Australia, when it comes to discrimination or sexual harrassment, it is the perspective of the complainant that counts.

So can you still have a joke? Well, there appears to be a wealth of research that says humour is beneficial to society. So yes, you can still have a joke.

From time to time the law steps in and says "that is beyond a joke".

How do you avoid stepping over the line?

Think before you speak and if after hearing it in your head you fear it might be misconstrued, don't comment.

And if you want to practice saying what you mean without offending anyone, check out this great little book by Andrew Horabin – Bullshift. I saw Andrew present Bullshift at a conference recently and he was outstanding.

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