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The Defamatory Paedophile Detector: Roy Moore v Sacha Baron Cohen

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He recently completed the LPC and is waiting to begin his training contract with a large national firm. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

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© Four By Two Television, Spelthorne Community Television, and/or Showtime

Comedy is simply a funny way of being serious.

Peter Ustinov

The concept of free speech has been hotly debated by the international media in recent weeks. In particular, in August 2018, considerable controversy surrounded the suspension of far-right political commentator and Infowars founder, Alex Jones, from websites like Apple Music, Facebook, Youtube and Spotify for alleged ‘hate speech’.

More recently, on 5 September 2018, it was reported that American politician Roy Moore had filed a lawsuit against British comedian Sacha Baron Cohen – and networks Showtime and CBS – following the airing of Cohen’s controversial TV show Who Is America?. Moore, the former Chief Justice of the Supreme Court of Alabama and Republican nominee for the Senate in 2017, alleges that Cohen defamed him, intentionally inflicted emotional distress and was fraudulent in tricking him to partake in an interview for the programme. The action is seeking $95m (around £73m) in damages.

The lawsuit looks set to trigger debate from commentators across all sides of the political spectrum on the issue of exactly how the concepts of free speech – particularly that concealed within comedy – and the right to a reputation should be balanced. This article will focus on the defamation aspects of Moore’s suit, considering the position of the tort in an ever-more polarised political climate.

Who Is America?

The interview in question, which aired on 29 July 2018, consisted of Cohen – disguised as fictional Israeli anti-terror expert ‘General Erran Morad’ – informing Moore of recent ‘technological innovations’ created by the Israeli army. Halfway through the sketch, Cohen began to discuss a device designed to identify sex offenders, particularly paedophiles. He produced an object similar to security metal detectors and began waving it around. It made no noise when waved in front of Cohen, but it repeatedly beeped when waved in front of Moore. Cohen then spent a very uncomfortable minute testing the device on other people and insisting that the device must be faulty before Moore defensively asserted that he had been married for 33 years, he was not a paedophile, and cut the interview short.

The sketch alluded to the sexual misconduct allegations made by nine women against Moore in November 2017. Three women claimed Moore had sexually assaulted them, two of which allegedly occurred while the women were just 14 and 16; six other women claimed that Moore had ‘engaged in inappropriate or unwanted behaviour with them’. The allegations contributed to Moore’s defeat in a special election for the Senate in Alabama in December 2017, resulting in Democrat Doug Jones becoming Alabama’s first non-Republican Senator since 1997.

Moore’s case against Cohen is, for several reasons, unlikely to be successful. Firstly, and most importantly, Moore signed a release before appearing on the show. As Shalizeh Sadig, an entertainment lawyer based in New York, confirmed to the New York Times:

[A] well-crafted depiction release for a show of this nature would include language resisting, among other things, claims for defamation and infliction of emotional distress (whether intentional or negligent).

Secondly, in America – though not in England and Wales – public figures face the additional hurdle in defamation claims of proving that the defamatory act was made with ‘actual malice’, as per the requirement of the Supreme Court of the United States in New York Times Co. v Sullivan [1964].

Obviously, the lawsuit against Cohen will involve American law and its version of the tort of defamation. However, for English lawyers, it still raises an interesting question: if the action was brought in England and Wales, what would the outcome be? More specifically, would Cohen have a defence due to the nature of his show? Much like the parody exception for copyright infringements, which recognises the necessary role comedy plays in facilitating political commentary, is there – or should there be – a similar comedic defence for defamation? Of course, Cohen – in producing the paedophile detector – was poking fun at Moore’s allegations, but could the fact that there was clearly a more serious undertone to the sketch remove the ability for Cohen to claim he had not defamed Moore?

The English Law of Defamation

A defamatory statement is one that tends to lower the reputation of the subject in the eyes of the right-minded members of society. After concluding the common law position was too generous to claimants, Parliament introduced the Defamation Act 2013 (DA 2013) in an attempt to rebalance the competing rights of the right to freedom of speech and right to a reputation. This piece of legislation added many changes that, as noted by David Hooper et al, generally favours defendants.

The Criteria for a Successful Defamation Action

The first criteria requires the claimant to prove that the statement in question had a defamatory meaning. English courts have generally struck a harmonic note when defining ‘defamatory’. In Parmiter v Coupland [1840] 6 M&W 105, defamatory material was deemed to be ‘a publication… calculated to injure [the claimant’s] reputation by exposing him to [public] hatred, contempt or ridicule’. Likewise, Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 defined ‘defamatory statement’ to mean a statement which tends to lower the claimant ‘in the estimation of right-thinking members of society generally’ or to cause him to be regarded with feelings of hatred, contempt, ridicule, fear or disesteem.

The second requirement is that the statement must have been published. This requires communication of the statement to be received by at least one other person, either intentionally or negligently. In this respect, defamation can be effectively divided into two categories: libel (where the other person receives the communication in a permanent form, such as the written word) and slander (where the other person receives it in a non-permanent form, such as the spoken word.

Thirdly, the reasonable reader/viewer must have been able to find that the statement referred to the claimant, either as an individual or a member of a specific group. The fourth requirement, inserted by Section 1(1) of the DA 2013, provides that the claimant must prove the statement has caused, or is likely to cause, ‘serious harm’ to their reputation.

Parliament's failure to define what constitutes ‘serious harm’ left the courts to consider how best to fill this gap. In Cooke v MGN Ltd [2014] –  as discussed by Emily Clements for Keep Calm Talk Law – Bean J held that the claimant need not provide evidence of serious harm is in every case, on the grounds that some statements are so obviously going to cause serious harm that damage can be inferred (for example, where the defendant asserts the claimant is a terrorist or paedophile). However, in reaching his decision, Bean J declined to give a definitive definition of what constitutes ‘serious harm’.

Likewise, the Court of Appeal in Lachaux v Independent Print Limited [2017] – previously examined by this author for Keep Calm Talk Law – held that a presumption of harm existed due to the inclusion of ‘is likely to’ in Section 1(1) of the DA 2013, and that Parliament, in enacting the statute, had intended to raise the threshold for harm from ‘substantial’ to ‘serious’. Again, however, no in-depth or authoritative definition of what is meant by ‘serious harm’ was given.

Defences to a Defamation Action

The Truth

The primary defence available to defendants is set out in Section 2(1) of the DA 2013; namely, that the ‘imputation conveyed by the statement complained of is substantially true’. Therefore, no matter how badly a claimant’s reputation is damaged, if the defendant is telling the truth they have not defamed the claimant. The burden is on the defendant to prove that their statement is substantially true. This can be a difficult task, particularly in ‘he said, she said’ cases with little documentary evidence.

Honest Opinion

Section 3 of the DA 2013 provides defendants with a further defence, holding that a defence will arise where:

  1. The statement complained of was a ‘statement of opinion’;
  2. The statement indicated, either in general or specific terms, the basis of its opinion; and
  3. An honest person could have held the opinion either on the basis of any existing or privileged fact published at the time of or before the statement complained of.

Jonathan Djangoly MP, former Parliamentary Under-Secretary of State for Justice, has explained that the requirement for the opinion to be based on fact was intended:

[T]o reflect the requirement in case law that the defendant must prove a sufficient factual basis for the opinion.

However, this could create a difficulty in Cohen’s case: can Cohen’s opinion (if it is his opinion) that Moore sexually assaulted the complainants be held to be based on fact if it is, as of yet, unproven that Moore did in fact assault these women? Moore denies the allegations made against him, has not been convicted in court for any offence relating to them, and even sued the complainants for defamation. Therefore, it can hardly be said that the opinion that Moore is an abuser is based on fact as no such fact has yet been proven.

Public Interest

Thirdly, there is a defence of ‘public interest’ under Section 4(1) of the DA 2013 that states the defendant will be protected if they show that:

  1. The statement complained of was, or formed part of, a statement on a matter of public interest; and
  2. The defendant reasonably believed that publishing the statement complained of was in the public interest.

In addition, Section 4(4) of the DA 2013 provides courts must make allowance for ‘editorial judgement’ when considering whether it was reasonable for the defendant to believe that publishing the statement was in the public interest.

A Missing Defence?

As mentioned above, the United States defamation laws introduce an additional hurdle for public figures in that they have to prove that the defamatory statement was made with 'actual malice' (i.e. the speaker knew the matter was false or entertained serious doubts about its falsity), per New York Times Co. v Sullivan. In England & Wales, however, public figures such as politicians are subject to the exact same rules as the average person. 

Whether England & Wales should adopt a similar approach to America regarding public figures is an interesting point. Public figures, such as politicians, base their careers on the faith of the people - if the public begin to distrust a politician, that politician will likely not be re-elected. This has become an even bigger concern in light of the growth of disinformation and so-called 'Fake News', creating the potential that politicians may lose their seats for something they haven't even done. In such an age, where Twitter users can retweet and comment on articles that were completely fabricated moments before, perhaps it would be beneficial to include to an 'actual malice' requirement so as to prevent innocent but gullible members of the public from acting defamatorily by spreading lies while believing them to be true.

While the argument could be made that such acts would fall under the remit of the 'honest opinion' defence, this creates uncertainty in that the honest opinion defence has, as of yet, received little consideration by the courts, resulting in general confusion around how it operates. As such, it is unclear whether the opinion must have been based on a true fact, or whether it could be based on any fact, whether true or untrue.

Instead, Kenyon suggests that a defence of 'political communication privilege' be afforded, which would allow for speech on political matters to receive privilege status due to it being in the public interest under Section 4(1) of the DA 2013. This would be similar to the US approach above. However, it is submitted that such an approach would not be wise, mostly due to the already fragile state of the role the internet plays in the spreading of information and disinformation. Perhaps once greater methods have been taken to tackle disinformation this topic should be revisited, but it would be unwise to implement such an approach until that time.

What About Comedy?

An interesting factor in the Moore v Cohen suit is the point that Cohen is a comedian. While it would certainly be deceitful to claim that Who Is America? did not have a political agenda – it clearly set out to mock the hypocrisy prevalent in the modern Republican party by showing the very worst of its elected officials – it was primarily intended to entertain. Indeed, the beauty of comedy is that powerful messages can often be espoused alongside humour.

However, certain limitations should, rightly, be placed on the abilities of comedians as to what they are able to say. Differences of opinion as to where this line should be drawn likely coordinate with the respondent’s political leaning. One need only look at the recent conviction of Mark Meechan (aka ‘Count Dankula’) – discussed by this author for Keep Calm Talk Law – to highlight the scale of disagreement between commentators as to whether purportedly ‘comedic’ actions deserve criminal proceedings. To some, no speech performed in the name of comedy – even that which can be classified as ‘hate speech’ – should be subjected to limits; for others, any and all speech which could be deemed offensive should be blocked.

English courts have previously touched upon this topic. In John v Guardian News & Media Ltd [2008], The Guardian had published an entry from a mock diary of Elton John. Its contents focused on the hypocrisy of wealthy celebrities, who – in organising and attending lavish parties in order to fundraise for charity events – are arguably more concerned with boosting egos than actually helping the charities they promote. Indeed, a particularly poignant line of the ‘diary’ read:

Naturally, everyone could afford to just hand over the money if they gave that much of a toss about Aids research – as could the sponsors. But we like to give guests a preposterously lavish evening, because they’re the kind of people who wouldn’t turn up for anything less.

Tugendhat J in John v Guardian News & Media Ltd [2008] found it obvious that the ‘diary’ was an attempt at humour and that the reader of The Guardian would be intelligent enough to recognise that the written words were not actually scripted by Elton John himself, but instead were mocking the parties that John and similar socialites attend. In doing, he referenced the earlier case of Berkoff v Burchill [1996], in which Millett LJ had stated:

Many a true word is spoken in jest. Many false ones too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no-one would take them seriously. The question, however, is how the words would be understood, not how they were meant.

In Cohen’s case, it was clear that he was mocking Moore about the recent allegations against him. In addition, it seems fair to argue that the average viewer of Cohen’s show would be able to recognise that Cohen himself was not making the statement that Moore was assuredly a paedophile. No viewer would have assumed that Cohen had some proof of Moore assaulting the complainants beyond the evidence (if any) presented by the complainants – why would Cohen, of all people, have this special evidence? Of course, Cohen may have humiliated Moore due to a dislike or suspicion of the latter, but this is surely not the same as openly declaring that Moore did indeed commit the acts he is accused of. To embarrass someone as part of a sketch is not the same as to defame them, and it would be a mistake to conflate these concepts.

Conclusion

As mentioned above, while the Moore v Cohen lawsuit is not an English case, it still raises interesting questions about English defamation law. Whether an allowance should be given to comedians in regards to what they say is debatable, with both sides of the argument having solid points. Comedy is an important aspect of society, allowing the public to laugh at, and comment on, matters that they deem are wrong with the system. However, the guise of comedy should not provide an unbeatable defence in cases where a comedian has legitimately gone too far.

It would be surprising and, it is submitted, highly underserved, if Moore were to be successful in his suit. There are a number of cogent legal reasons why this should not, and will most likely not, happen: not least, because of the fact that Moore signed a release and the stance taken by the US legislature and US courts against public figures suing in defamation.

The interview in Who Is America? represents the traditional path taken by Cohen which led to his success through other characters such as ‘Ali G’ and ‘Borat’: disguise yourself, trick people into an interview and then either embarrass them or give them the tools to embarrass themselves. Cohen has repeatedly been sued for such acts. It is perhaps notable that he has only settled once, and that instance was entirely different to that of Moore’s suit; most notably, the claimant in that suit had not signed a release. As such, it can only be a matter of time until Moore’s claim is inevitably dismissed.

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Tagged: Defamation, Media, Tort Law

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