why defamation is still not a joke despite recent legislative changes

Changes to Australia’s libel laws, which went into effect in several states this month, could give some breathing space to political satire as a form of political communication.

In recent years, the risk of defamation lawsuits for Australian comedians has been real.

The treatment of YouTube personality Jordan Shanks and his producer Kristo Langker is a case in point. FriendlyJordies, Shanks’ popular YouTube channel, had mockingly portrayed NSW Deputy Prime Minister John Barilaro as Mario, the fictional video game character who wins races by cheating. Shank’s satirical stunts and comments contained content about alleged incompetence and corruption.

In response, Langker was arrested by none other than the NSW Police’s Fixated Persons Investigations Unit, which is usually busy tracking down extremists and terrorists and subjecting them to a psychological examination. In addition, Shanks is now being sued by Barilaro for defamation.

READ ALSO: NSW Deputy Prime Minister threatens to sue FriendlyJordies, reminding us that the parody hits in ways traditional media can’t

How will new libel laws protect satirists?

In New South Wales, Queensland, Victoria and South Australia, the reformed defamation laws came into effect on July 1. They will be uniform across the country by the end of this year.

The reformed laws now include a protection of the public interest and a provision for serious harm, both of which promise leeway for political satirists.

The changes mean more protection for satire that highlights matters of public concern. The only exception is that representations cannot make allegations without a factual basis. And the new regulation on serious harm means that satirical insult is not automatically equated with reputational damage.

Read more: Why libel lawsuits are so ubiquitous in Australia – and difficult for media organizations to defend

How this will be legally examined remains to be seen, especially as regards the implicit right to free political expression. These legislative reforms can be a welcome relief and reduce some risk to satirists.

But when it comes to the balance of power, the question of defamation can still boil down to who has the money to build a defense. For grassroots and citizen satirists without the means to access legal advice, this is still problematic.

Music student Kristo Langker is charged with pursuing John Barilaro, an allegation he denies.
Dean Lewins / AAP

Limits of the modern court jester

Whether or not to approve of Shank’s potentially racist portrayal of Barilaro, the actions against him and his producer seem disproportionate and far removed from the past.

For example, in 2004 in a stunt that resonated with the satirical series The Chaser’s War on Everything, a man named Patrick Coleman was handing out leaflets in Townsville saying “Meet Your Local Corrupt Cops.” He was arrested and sentenced under the Tramp Act for using offensive language in a public place (among other charges).

Read more: Friday Essay: Why Is Australian Satire So Seldom Risky?

However, the Supreme Court overturned the charges of insulting the police, saying that the police should be expected to oppose the insults directed against them.

In fact, tolerance for even more daring political satire goes way back, from the uncompromising comedy of The Big Gig and The Comedy Company to the renegade and surreal reversal of Australian politics and culture in the DAAS Capital series.

In the past, many politicians have even supported or engaged in satire themselves, such as the self-deprecating performance of former Victorian Prime Minister Joan Kirner on The Late Show in 1993.

Joan Kirner sings Joan Jett’s “I Love Rock n ‘Roll” on the Late Show.

There have also been notable cases of resistance. In the late 1990s, Pauline Hanson filed legal challenges against the work of satirist Simon Hunt, aka Pauline Pantsdown. ABC’s The Glasshouse was also canceled in 2006 – some say at the request of John Howard – arguably because the political commentary was too harsh for the Prime Minister’s office.

Try to criminalize identity theft beforehand

In recent years, the concerns of increasingly sensitive politicians seem to have found more weight in the law.

In 2017, Attorney General George Brandis fired a serious warning shot at those who might dare to satirize government officials.

The government’s proposed legislation would have replicated existing laws that already made proper impersonation illegal and provided an extremely crude approach to defining impersonation. In his submission to the Parliamentary Inquiry into the Legislative Review, Jeremy Gans, professor at Melbourne Law School, warned against exceeding the law.

He pointed out that the bill could have criminalized satirical behavior as a political expression,

and to say otherwise is silly, confusing and (maybe) ambiguous as to which party bears the burden of proof on this matter.

While these reforms did not materialize, they may reflect a broader government desire to disinfect public political commentary.

Comedian Max Gillies plays former Prime Minister Bob Hawke.

Persistent risks for satirists despite the changes

Attempts like this to regulate satire are worrying in several ways. First, they strengthen the powers of already powerful government officials against more vulnerable actors.

Even with the new changes to the libel laws, many aspiring satirists will continue to face challenges in safely practicing their craft without the legal support and know-how of media or production companies.

And satirists will almost certainly continue to experience increased pressure to self-censure because of the threat of legal proceedings. This undermines a key medium for articulating legitimate political criticism and protest.

Comedian, writer, and television presenter Wendy Harmer once observed that what we see on television and other media, “you say where your society is”.

If media artists are too afraid to express the sentiments of our communities through satire, for fear of government or legal reprisals, then we certainly know less about who we are.