Jokes could land you in deep writ

Roland Gent seeks legal advice for comedians

Comedy, it's the last bastion of free speech isn't it? Well you might have thought so, if you go to stand up shows, you'll hear all sorts of jokes and opinions from comedians from politically opinionated routines, gags about celebrities, and downright sick humour all the way to the outright childish gags and silly puns.

But should comedians have any legal concerns about the subject of their jokes? Every gag has a target after all. Are comics defaming their subject, or can they defend themselves by saying 'I was only joking'?

In comedy clubs I've seen comics talk about their ex-partners in a derogatory way, accuse politicians of lying, accuse celebrities of doing all manner of naughty things, say that their ex-school teacher was up to all sorts of inappropriate stuff, suggest that the builder who came to fix their kitchen was a cowboy… and much more. All of the routines involved naming the person involved.

There seems to be a fine line between making a joke and defaming someone.

I did my Edinburgh show last year in a venue called The Staff Room at the Three Sisters, which held roughly 20-25 people, and on the last night of my show I made a joke, which got a big laugh, about someone I used to work with.

A few weeks after my show was over I was surprised to get a letter from a solicitor which said that I had defamed the person I made the joke about and that I should pay £1,000 to the charity of his choice and never make the gag again, and even went on to name upcoming shows at which I should not say the joke.

Naturally I was offended that anyone could pluck a figure of £1,000 out of thin air, expect me to pay it; and also try and stop me from saying something.

But on reflection I have better jokes than the one I said, and it only works in the context of the show, so I was unlikely to say it again anyway.

I phoned up Equity, I had been a member for 20 years. My local representative would be sure to sort it out wouldn't he?. His advice was: 'Oh well you'd better pay up…' hat! I was seething! Was that it? Pay up? For what? Well stuff Equity, I got onto someone who knew what he was talking about

I had to seek legal advice from Barjinder Sahota, from Sahota's solicitors in London. He wrote to the offended party and got them to back off, and suggest that its wrong for them to say whether I can make a joke or not.

Ultimately the offended person would have to pay his solicitor to get £1,000 from me regarding a joke heard by 20 people in a cloakroom – not worth the cost or the hassle.

Had this gone a step further usually solicitors suggest that it is worth following the path of mediation where the parties agree a solution and don't go to court. Going to court and speaking about matters in public can actually further damage someone's reputation

So I put a few questions to Mr Sahota to see if he could help comedians out.

What is defamation?

Defamation in a nutshell is where you overstep the mark in hurting someone's reputation without proper reasons allowed by law such as truth or where you have a duty or interest to talk about it.

What is the difference between libel and slander?

Libel is a communication in permanent form ie writing; slander is if the communication is transitory ie verbal communications (unless they are spoken on tv or radio when they become permanent and so the slander becomes a libel too).

If you tell a joke about someone and they think it is defamatory what can they do?

Well, they could 'sue the pants off you' if it happens to be defamatory and you don't have a good defence... but a joke should be kept a 'joke' and no-one, if you tell it as a joke, should take it seriously. But if you are going to tread on a named person's toes by making any factual allegations about their character, then, it may be best to get it checked out by lawyer.

What is the worst that could happen to a comedian if they tell a joke on stage, and the subject of the joke thinks it is defamatory?

If successful defamation could mean the tens of thousands of pounds in damages, and, if you have a house, you may lose that... so consequences can seriously damage your wallet and your home.

What is likely to happen?

Well if you get good early legal advice then the likelihood is that if you have a good defence then you should not be too worried - but if you don't, a lawyer can guide you through the legal minefield.

Is it better for the comedian if a joke is said in a small club compared to a large theatre or on TV?

The size and 'target' audience is an important factor when it comes to how serious the libel is viewed, especially on the issue of size of damages... the bigger the audience the bigger the damages. But if they are your immediate peers or people who are important to your career or life, then even a small audience (say 20 people) can attract damages of more than £20,000. Also if the libel is repeated by others who heard it from you then you could be held liable for the spread or repetition of the libel. So what started off with 20 people could end up heard by thousands, for which you may be held liable if a causal link can be established. Generally, though, the smaller the audience the safer you are. If you say it on TV or in a large theatre then you can not use size in mitigation if someone sues.

So do you have any guidelines for comedians in what is a grey area of free speech versus attacking personal reputation, especially for political comics

This is a very nuanced and complex question and it's difficult to generalize. However it should be safe to attack policies but not the personal integrity of the politician. But in reality many politicians like being joked about', so long as it does not go to their integrity or honesty, as it gives them publicity. But the clever comedians are not so direct, they can get their cracks in at the expense of the politicians who don't even realise it. A subtle joke is worth ten blunt ones. The debate of free speech and the right to personal reputation belongs in the lecture theatre not the comic hall, so lets keep the two apart. If you are going to attack a prominent politician's integrity or honesty, even as a joke, its best to get some legal advice first'

If some one is in the public eye such as a celebrity or a politician, are they fair game for any comments?

See above... but I would add that they are not 'fair game' since if sued you have to prove the words were comment as opposed to any factual allegations. Also the comments have to have some basis on facts which are true. But for the comedian the better defence would be that no one would take the matter seriously, as the whole context was a joke, and or just vulgar abuse which again no reasonable listener would take seriously.

What if you don't directly name someone?

You can still get into a lot of trouble if it can be proved that a sufficient number of people knew who you were referring to. So anonymity of the target subject will not necessarily protect you.

Some examples

If I say on stage: 'I think the Daily Mail is racist' could they sue?

Most likely not... as the Mail would probably just ignore you - this would also come in the category of vulgar abuse and something that no one is likely to take too seriously, or your honest comment - though in a different setting being called a 'racist' could land you in court.

If I say I think journalist X who writes in the Daily Mail is racist' could they sue?

Yes, this could be a risky allegation unless you could defend with some examples of how and why you believed this.

If someone says on stage: 'Jeremy Clarkson is racist' could he sue?

Yes, but then again you would have the defence of it being only a joke or vulgar abuse. Anyway would Clarkson sue?

If Jeremy Clarkson insults an entire nation in a TV broadcast could the entire nation of say, Mexico, sue him or the BBC?

No, this would be too broad a group. Only individuals or an identifable (ie by name) group of individuals can sue - so Clarkson can slag off a nation with impunity.