Rolling the Defamation Dice by Producing Real Life Stories - Burgess Sport & Entertainment Law

By Rebekah O’Sullivan and Matt Burgess, Director.

Television shows often mirror the society we live in, drawing their stories from real life characters and events but many of the powers that be do not realise they are rolling the dice and exposing themselves to some serious legal risks. This is evident now more then ever in Australia, with shows such as, ’Underbelly,’ and ‘Brothers in Arms,’ gracing our screens whilst bikie gang wars heat up our streets. Writers, producers, directors and television networks need to be wary with just how far they go when portraying characters and creating the right amount of conflict to draw audiences in. Defamation claims are on rise and the Networks are paying out substantial amounts to citizens in compensation claims. With funding already a problem in Australia, this is an unnecessary expense.

That was the recent lesson learnt by HBO in America who was sued by MTV reality star, John Devenanzio. HBO used Devenanzio’s name and personality in their hit show, Entourage, by featuring a character named ‘Johnny Bananas’ or ‘Johnny Drama’ (played by Kevin Dillion). Devananzio charged HBO, Time Warner and Entourage creator Doug Ellin, with featuring an ‘unwarranted, unauthorised and unfavourable mention of plaintiff’s name and personality and allusions to plaintiff’s physical and mental character.’ Devenanzio claimed this created emotional stress for him. Although Devenanzio’s claim failed to meet the requirements for an American intentional emotional distress claim, defamation is another cause of action that a citizen could bring against a network in Australia or America.

What is defamation?
Defamation is where a person seeks damage for loss of reputation from someone who has published defamatory material about them.
In November 2011, Former Kings Cross cop Wendy Hatfield won a fiercely contested defamation case against the third Underbelly series. Ms Hatfied sued producers of Screentime, TCN Channel Nine and Nine Network Australia over Underbelly: The Golden Mile. She claimed the Network portrayed her as “Constable Wendy,” who had steamy affair with nightclub impresario John Ibrahim in the 1990’s, a fact she vehemently denied.

Hatfield claimed the show caused her to be brought into hatred, ridicule and contempt and that the character gravely injured her character. Ms Hatfield won $59,000 from the publishers of the tie in book and a substantial confidential figure from the Networks for six television episodes.

For defamation to be proved, there must be a publication, such as a broadcast on television to a person other then the plaintiff. The publication does not need to name the plaintiff as such as long as there are some extrinsic facts or innuendo that would enable the ordinary reasonable view to identify the plaintiff. A claim can be brought if the publication lower’s the person’s reputation in the eyes of the ordinary reasonable members of the community and exposes the plaintiff to hatred, contempt or ridicule. This defamation must have the capacity to injure the person’s reputation either by being shunned or avoided by the community or injuring the person’s reputation in business or their profession. No actual financial loss needs to be proved.

But I didn’t mean to!
To balance the community interest in having free speech and a proper functioning democratic society, there exist a range of defences that have been created by the common law over time and also according to Statutes. If the publication is:

There are many other types of defences but these are perhaps the more relevant ones for creators of entertainment content.

Who can be sued?
The writer or speaker of a statement can be sued for defamation. In addition, the broadcasting, television or newspaper corporation which publishes the statement; the person or journalist who wrote the material; a person being interviewed; a speaker in a talk-back program; the producer, executive producer or editor; and any other person who contributed in any way to the publication or authorised the making of the statement can also be sued, if their contribution can be identified. For example, you cannot avoid personal liability for defamation by making a statement on the letterhead of an incorporated association. So beware, almost everyone can be claimed against!

What can we learn from this?
Creators of television and film content must understand that even though they have the freedom to express creatively, one must be mindful that there are still some serious consequences that may arise in being too creative when drawing from real life characters or stories. For example, the very first Underbelly series was cancelled before it was launched due to it litigious nature – a costly exercise for the Nine Network. This is a complex area of law and very subjective so if in doubt, it would be wise to consult a lawyer in regards to characters and storylines to minimise the risk of costly financial lawsuits down the track. It will be interesting to see if the new series, ‘Brothers in Arms,’ can keep the law (not just their bikie law) at arm’s length!

This blog is for discussion purposes only. This must not be considered legal advice.

For legal advice on this topic and references to any information in this article, please contact
Matt Burgess, Director:
Phone: +61 405 722 739
matt*bselaw.com.au
Skype:burgoasp
Connect with Matt on Linked In

Image Credit: FreeDigitalPhotos.net

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