Anthony Miller on how comics can fall foul of the litigious

I’ve always spouted a lot of nonsense on the internet but now that it’s expected for comics to generate online content I’ve started to discover that there’s a big problem with putting amusing slander said casually in the back of a pub into permanent form. It’s called libel.

I don’t have many litigants but the few that there are, are very keen and loud silently. One was a property business who I annoyed completely by accident. Despite my repeatedly pointing out that everything I’d said on a third party site, was literally true they continued to threaten to sue me beyond the point of all reason.

However my favourite litigant is a man accused of beating his ex-wife who used to be my … see already it’s hard to hide his identity.

Here’s the problem. Despite everyone else talking about it and despite it being widely known about all over the internet I – a comedian who’s supposed to talk about things – can’t talk about it very easily. For apparently I am ‘repeating a libel’.

It was never proven and charges were never brought so he is innocent until proven guilty. I am guilty until proven innocent. This irony is, of course, completely lost on him. This was national news, hard to prove, one person’s word against another and no one’s got any idea which side was actually guilty... so even if I gave his point of view I might be libelling someone else – there is no solution here but to stay silent.

But should I stay silent on the subject of domestic abuse? Even though everyone and their dog knows about it, the allegations are viewable online and he never sued over them, if I put it in permanent form it’s a ‘new’ libel. To make it even more complicated he has won a libel action on a different matter entirely so anything that could be interpreted in any way to allude to that is ‘a very serious matter’.

One problem is that jokes almost all have secondary meanings. The more meanings a joke has the better it is – but also the more potential for defamation. Even if I attempt to be sensitive he still complains. Most people don’t sue people with no money but if they’re rich…

If you do a joke about the Lord McAlpine case that isn’t intended to suggest he’s a paedophile in any way you can still be sued if the joke contains the original allegation. As Carter Ruck would say ‘adding allegedly is not enough’. Journalists are required to source their stories. Comics who read amusing clippings out the paper in an amusingly decontextualised way may be repeating libel . That comedy is meant to be bollocks is no defence.

Serious journalists and writers have the defence of public interest and rules to follow like the Reynolds doctrine to protect them. They also have defences of qualified privilege in certain circumstances. You’ve probably read this kind of article it usually begins with a massive headline like “**** ****** IS AN ‘EVIL BABY EATING C***’ …and ends with something along the lines of ‘…a court heard today. The case continues’. What was reported on yesterday may not actually be repeatable today.

I asked a professional comic what they do about this if it happens on telly and they said ‘just drop the joke, I don’t make a fuss about it’ and of course one of the simplest solution to not getting sued is to work out who the highly litigious people are and avoid writing about them. Just send up people with a sense of humour.

But when you think about that, it’s a bit sick. That means that the nicest people get the most hatred and ridicule while the thin-skinned twits with money get treated with nothing but charm and civility and find it easier to climb the ladder.

Of course not everyone who sues for libel is a evil – the late Dr Brian Jones, an intelligence analyst, sceptical of claims of Iraqi weapons of mass destruction, was a nice man but sued over articles that suggested he leaked information to the media.

Britain is still the most expensive country in Europe to be sued for libel in by a factor of ten. This is actually a double edged sword too because it means many people have no access to the law at all and most actions are settled out of court via people exchanging very rude letters in private.

Why don’t you fictionalise it? I hear you ask. But fiction isn’t a protection from the long arm of solicitor as many an author who has parodied those they knew vaguely has expensively discovered - and simply stating there’s no similarity to real people doesn’t always work either.

Alexei Sayle was sued for libel over the graphic novel Geoffrey the Tube Train and the Fat Comedian. And, of course, because it’s fiction or entertainment you immediately lose all the ‘public interest’ defences that are available to journalists. Ordinary people just have to prove libel, politicians usually have to prove malice too. Talking about people you know isn’t always safer.

But this is all about the printed word, Anthony? I hear you say …surely the spoken word is just slander? Wrong again. Under the Theatres Act 1964 Section 4 ‘For the purposes of the law of libel and slander … the publication of words in the course of a performance of a play shall, subject to section 7 of this Act, be treated as publication in permanent form.’ So as long as you don’t write on your hand, don’t keep set notes and it’s all in your head then yes. So I’ve started not doing that.

Here’s what we found out. Taking the material down immediately prevents you from getting done for meaningful damages. When you’re sure you’re in the clear or you’ve defused the situation you can put it back up. If the material’s been online over a year you can usually tell them to get stuffed as there’s a one year time limit on libel actions unless it’s very bad. Quote the Defamation Act 2013. Communicate by email and force your litigant to go through the Shaggers for invasion of privacy. I hope before you talk about things on stage you’re going to give your partners and ex-partners prior notification under Article 8 of the Human Rights Act as implemented by the European Court on Human Rights into English Law. With libel it’s just a matter of money – with privacy they can take an injunction out against you. Then your set’s gone.

If you too have these problems too talk to Media Defence; they may not be able to help you directly but they helped me find people willing to supply pro bono help. The So You’ve Had a Threatening Letter leaflet from Index on Censorship and English Pen is priceless too.

This is not legal advice but a survival manual.

Published: 19 Sep 2013