Artistic Expression, Defamation / Reputation, Privacy, Data Protection and Retention
The Case of Mephisto
Closed Contracts Expression
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The Queensland Court of Appeal dismissed the Australian Broadcasting Corporation’s appeal against a judge’s decision granting an interim injunction to stop broadcasting a musical composition called “Back Door Man”. The song used various excerpts cut from the voice of politician Ms. Pauline Hanson and the injunction was issued on the grounds that the content of the song was clearly defamatory. Defendant ABC appealed the injunction arguing that no reasonable person could conclude that the musical composition conveyed real and serious imputations against Ms. Hanson. ABC also argued that the musical composition referred to a political figure and a discussion in the public interest. The Queensland Court of Appeal held that the injunction was properly granted because the musical composition personally denigrated the plaintiff and its content was patently defamatory.
On September 1, 1997, the Australian Broadcasting Corporation (hereinafter ABC) broadcast in Australia a musical composition called “Back Door Man,” which used various pieces cut from the voice of the nationalist politician Ms. Pauline Hanson. The musical composition was produced “by a cut and paste exercise, taking bits of the respondent’s speeches from here and there and piecing them together to suggest her actual participation in the final result” [para. 2].
According to the transcript of the musical composition submitted to the court, the song was as follows:
“I’m a tory and indeed Pauline. I wonder what the end will be Pauline. Yes, there I am I find this very hard. I look at this way. I’m a backdoor man. I’m very proud of it. I’m a backdoor man. I’m homosexual I’m a backdoor man yes I am. I’m very proud of it. I’m a backdoor man. I’m homosexual (chuckling). Backdoor, clean up our own back door. We need to get behind and we’ll do trade with you. Backdoor – all our fears will be realised. But I’m a happy person. Because I’m a backdoor man, yes I am (chuckling). Um, um, um, um, um, um – what I’ve called for is a homosexual government – yes – join us, be one of us. Come out be one of us. Yeh, I’m very proud that I’m not straight. I’m very proud that I’m not natural. Yeh, I’m not human. Someone hit me on the head one day, yeh. I’m not human. Someone hit me on the head one day. I don’t know, I don’t know, I don’t know, I don’t know. Poor Pauline, poor Pauline, poor Pauline. I like trees and I like shrubs and plants and trees and shrubs and plants but I’ve put the fence up now so that can’t get in – yeh. Please explain me me, please me me, please explain. Poor Pauline Poor Pauline I’m a tory and indeed, Pauline and her family. I’m a backdoor man. I’m very proud of it. I’m a backdoor man. I’m homosexual and back here. This is a circular driveway. I still work and I worked the other night. I’m rostered on I think for next week. Now a gentleman came up and told me he said that other people don’t receive, they’ve got to accept it here inside. I’m saying that they up and leave. Yes it’s a little bit country, it’s a little bit country, it’s a little bit rock n’ roll if you ask me. Yes it’s a little bit country of course, of course, of course. Of course, the man they named Pauline. I’m very proud that I’m not straight. I’m very proud that I’m not natural. I’m a backdoor man for the Klu Klux Klan with a very horrendous plan. I’m a very caring potato. We will never have the chance. I’m a backdoor man for the Klu Klux Klan with very horrendous plans. I’m a very caring potato. We will never have the chance. Please explain. Me. Please explain. Me. Please explain. Me. Please explain. Me. Me, me. Thank you. Please explain, please explain. Thank you.” [para. 3].
Also, in later broadcasts, the following paragraph was added to the musical composition:
“You must come out and be one of us. As long as children come across, I’m a happy person. Yes. This is a circular driveway. I still work and I worked the other night. I’m rostered on I think for next week. Now a gentleman came up and told me, He said that other people don’t receive. They’ve got to accept it here inside” [para. 4].
On August 28, 1997, plaintiff Pauline Hanson submitted an action against defendant ABC claiming damages for defamation. Ms. Hanson was a controversial “political figure” recognized in Australia for her political views [para. 2]. Ms. Hanson argued that “the broadcast material gave rise to imputations that she is a homosexual, a prostitute, involved in unnatural sexual practices, associated with the Ku Klux Klan, a man and/or a transvestite and involved in or party to sexual activities with children” [para. 5].
For its part, defendant ABC argued “that the material amounted merely to vulgar abuse and was not defamatory” [para. 6]. In addition, ABC asserted “that ‘the song was satirical and was not to be taken seriously” [para. 6].
The Chamber Judge had to decide preliminarily whether the injunction sought by Ms. Hanson to restrain ABC’s alleged defamation of the musical composition should be granted. The judge held that continuing to allow the song to be played would cause an “injury” to her and her family which could not be remedied by damages should she establish defamation. Therefore “the plaintiff’s case is sufficiently arguable that the balance of convenience favours the granting of an injunction restraining the continued publication of the material” [para. 8].
The defendant ABC appealed the decision granting the injunction to the Queensland Court of Appeal.
The Chief Justice delivered the opinion of the Queensland Court of Appeal. The central issue for the Court of Appeal to decide was whether the interim injunction granted by the Chamber Judge —ordering the respondent ABC to cease broadcasting the musical composition — was justified by the potentially defamatory effect of the musical composition on Ms. Hanson.
Appellant ABC argued that the Chamber Judge “applied the wrong test in confining himself to whether the material was capable of being defamatory rather than actually defamatory” [para. 10].
ABC considered that no reasonable person could conclude that the musical composition conveyed real and serious allegations against Ms. Hanson. Under this premise, appellant ABC emphasized that “when the words complained of are taken as a whole and in the context of an introduction to the effect that the words were not to be treated seriously it is at least arguable that such persons would understand the Ku Klux Klan and sexual references in the publication as alluding in a satirical or ironic sense to the respondent’s conservative political views” [para. 10].
In addition, appellant ABC considered that the judge’s decision to grant the injunction violated section 16(1)(h) of the Defamation Act (1889). ABC argued this provision protects a publication published in “good faith in the course of discussion of a subject of public interest where public discussion is for the public benefit and provided the comment is fair” [para. 17].
The Chief Justice rejected the appellant’s arguments and held that “while the learned Judge expressed himself in his judgment as dealing with whether the publication was capable of being defamatory his other observations during argument indicate his view that they clearly were defamatory” [para. 10]. In addition, the Chief Justice emphasized that the Chamber Judge considered the musical composition personally denigrated Ms. Hanson by making statements about her sexual preferences and that she was allegedly a pedophile, among other offenses. In this regard, he agreed that the content of the musical composition was patently defamatory.
In accordance with the above reasoning, the Chief Justice concluded “there is no real room for debate, but an ordinary sensible listener not eager for scandal would conclude that at least one or more of these allegations occurred. If a jury were to conclude otherwise, I am convinced that this Court would overturn on appeal its verdict as unreasonable. One or more of these imputations arise and are clearly defamatory for exposing the defendant to ridicule and contempt” [para. 16].
Additionally, the Chief Justice rejected ABC’s argument that the decision to grant the injunction preventing the continued broadcast of the musical composition was a violation of section 16(1)(h) of the Defamation Act (1889).
On the issue, the Chief Justice held that the main theme emerging from the musical composition was Ms. Hanson’s sexual preferences or orientation. On this premise, the Chief Justice held the appellant’s reasoning as contradictory because, on the one hand, ABC argued the musical composition was amusing and meaningless; but on the other, argued that the content of the musical composition should be taken seriously because it contributed to public discussion in accordance with section 16(1)(h) of the Defamation Act (1889). In this regard, the Chief Justice reflected “How could it be seriously argued that it gave rise to such qualified protection, while, on the other hand, the appellant urged that the whole exercise should be dismissed as derisory amusement or nonsense which was not to be taken seriously at all?” [para. 18].
The Chief Justice held that “there was no room for debate about the defamatory nature of this material” [para. 19]. Furthermore, the judge added that the appellant ABC could not exonerate itself from liability by putting forward a “disclaimer” before issuing the musical composition. In this regard, the Chief Justice emphasized that “a broadcaster cannot convert grossly defamatory into acceptable material simply pleading that it should not be ‘taken seriously’” [para. 20].
Finally, the Chief Justice concluded that “it cannot be said that prohibiting the broadcast of this material runs counter to the need for ‘free and general discussion of public affairs’ fundamental to our democratic society.” These were grossly offensive imputations concerning the sexual orientation and preference of a Congresswoman and her performance, which the appellant in no way supports as accurate and which were exhibited as part of an apparently quite brainless effort at cheap denigration” [para. 21].
The remaining judges of the Queensland Court of Appeal concurred with the opinion of the Chief Justice.
For all the reasons set out above, the Queensland Court of Appeal held that the Chamber Judge “was perfectly correct to grant the interlocutory injunction and the appeal is without merit” [para. 22].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Queensland Court of Appeal limited the Australian Broadcasting Corporation’s freedom of expression by rejecting its appeal against an injunction prohibiting it from broadcasting the composition “Back Door Man” on the grounds that it was seriously defamatory of a well-known political figure in Australia. The decision of the Queensland Court of Appeal considered it a priority to protect the plaintiff’s reputation in the face of a musical composition that it considered patently defamatory and upheld an injunction prohibiting the broadcast of the musical composition. The song was satirical and critical of a well-known political figure. The Court appears to have used a test in defamation law in which words are given their natural and ordinary meaning, whilst ignoring the context of those words. Judging the song on the literal meaning of the words was the wrong approach. Rather an approach which considered the satirical nature of the song, understanding that the genre employs irony and exaggeration, would have given more emphasis to the argument of the song being in the public interest, challenging the right wing, nationalist views of the politician.
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