The Australian Herald Sun caused a furore last month by publishing a cartoon by artist Mark Knight which purports to depict tennis-pro Serena Williamsâ€™ reaction to losing the US Open.
The cartoon, which has received multiple accusations of racism and sexism, shows Williams jumping over a broken racquet in a temper whilst the umpire asks her opponent Naomi Osaka â€œcan you just let her win?â€�
The paper has been defiant in the face of complaints, labelling its critics â€œself-appointed censorsâ€�. But what if Williams wanted to take action against the Herald Sun, can a cartoon be actionable in defamation?
Under English law, the simple answer is yes.
Thereâ€™s no blanket rule that a cartoon or caricature cannot be defamatory purely on the basis that it is (allegedly) satirical or allegorical, or otherwise meant to be funny.
The issue for claimants here would be persuading a court to ascribe their chosen meaning to the cartoon.
The general rule is that a defamatory statement should have a single defamatory meaning, or â€œstingâ€�, and that this â€œmeaningâ€� needs to be identified in terms of what the â€œordinary reasonable readerâ€� would believe it to be.
In respect of an allegorical cartoon, a court could find that this single meaning is not defamatory.
â€œMalicious falsehoodâ€� claims do not have the â€œmeaningâ€� rule, but do require the claimant to prove falsity of the statement, malice, and financial loss which are high burdens.
A publisher might also be able to rely on various defences to a defamation claim, e.g. that the cartoon was an honest opinion or published in the public interest (depending on the facts).
For the above reasons, defamation cases involving cartoons are rarely seen in court.
One case which arose in 2012 in the Jersey courts was Pitman v Jersey Evening Post. Here, the claim arose in respect of a cartoon of two politicians surrounded by banknotes and accompanied by the words â€œ4x the salary darling!â€�.
They alleged that its meaning was that they were â€œmoney grabbersâ€�. The Court did not accept that the cartoon would be understood to bear the meaning pleaded. The Court also said that, as politicians, the claimants could be expected to be more robust than others.
From a practical perspective then, what can editors do to try and ensure that they stay on the right side of the law?Â Here are some pointers:
- Consider the subject. As set out above, politicians and public figures are likely expected to be more resilient in the face of satire
- Set out to critique, not offend. In most cases, a cartoon does not have to be overtly offensive to get its point across
- Try to ensure that the basis and message of the cartoon is materially accurate, in the same way that you would when publishing any other article
- Obviously be careful to avoid any arguably racist material. Publication can be a criminal offence.
Demelza Hassani is a media and libel specialist at Reed Smith.Â Carolyn Pepper is a partner at the firm.
Picture: Danielle Parhizkaran/USA Today Sports/TPX Images of the Day
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Source: Digital Journalism