After the 2013 election, the ABC satirical program The Hamster Decides responded to an election night comment by the columnist for the Australian Chris Kenny that the ABC’s funding should be cut with an animated version of Kenny having intercourse with a dog. Kenny demanded an apology and then sued for defamation.
It is unusual for satirical programs or cartoons to be the subject of defamation actions, and such cases carry dangers for both sides in any litigation. A jury’s reaction to something that in ordinary discourse would be bad taste or disproportionate is unpredictable.
On March 6, Justice Beech-Jones ruled that the case could proceed to trial by jury because it carried the defamatory imputation that Kenny was a low, contemptible and disgusting person, although he rejected the imputation that the skit implied Kenny literally had sex with dogs.
Following this partial victory by Kenny, there was a short publicity blitz by all those usual suspects who seize any opportunity to criticize the ABC. In the short-term, Kenny and his allies seemed to be winning the propaganda war. On the ABC panel show, Q and A (March 10), not one panelist took the program’s side.
There were several claims that all Kenny had wanted was an apology, but this is in some doubt. Sydney Morning Herald columnist Mike Carlton said that he had it on strong authority that Kenny had demanded a considerable sum of money, an on-air apology to be telecast after Media Watch, plus the statement that he was a fair and impartial journalist. Presumably if the ABC holds its nerve and the case goes to trial, the truth of these early interactions will be revealed.
Perhaps the most notable intervention was by Prime Minister Tony Abbott, who said in a TV interview: ‘Well the point I make is that government money should be spent sensibly. And defending the indefensible is not a very good way to spend government money and, next time the ABC comes to the government looking for more money, this is the kind of thing that we would want to ask them questions about.’
It is hard to remember any other prime minister making such an intervention into a civil case in progress. It takes its place alongside other Abbott precedents, such as handing over his predecessors’ cabinet documents to the Royal Commission on the home insulation scheme, or using international fora such as the World Economic Forum in Davos to make domestic partisan criticisms.
So far Abbott has had a Teflon run since becoming Liberal leader. Partly this reflects the double standards at work in Australian politics. If a Labor leader had made a comment like Abbott’s say about a News Corp columnist, there would have been a huge outcry. Those media which have dutifully reported Abbott’s comments as sensible observations would instead have been filled with outrage.
We have a novel situation in Australia at the moment, where substantial sections of the media (News Corp newspapers and commercial radio talk shows, at least in Sydney) see themselves primarily in tribal terms, that they are on side with the government. In the process, those who seek to report politics impartially (the Fairfax press and in particular the ABC) are constantly attacked.
Prima facie, Abbott’s statement seems to not only have decided what the outcome of the case should be, but also to threaten one side financially for continuing. A naïve reading would consider that in a case which is sub judice and to go to a jury, this would constitute contempt of court. But it is another Abbott precedent that is unlikely to cause him any damage.
Rod Tiffen is Emeritus Professor in Government and International Relations, University of Sydney.