Return to main Advice page

Legal Eagle

Defamation

Q: Satire and libel

I am writing a satirical show and want to feature characters loosely based on amalgams of well known people in the entertainment business. These are intended as caricatures rather than character assassinations but I know how touchy some individuals can be. How can I cover myself against liability?

A: It is a very thin line you are intending to tread. Caricature and satire are both capable of being defamatory and if you are intending to base your characters, even loosely, on well known people in the entertainment business there must be a risk of your characters being reasonably identifiable with the real persons.

On the other hand, identification will not be enough if the material itself is not defamatory. It was said by the judge in one reported case that "the writing and publishing of anything which renders a man ridiculous is actionable." The test is whether what is written or said or done may bring the person concerned into hatred, ridicule or contempt. The fact that it may be good-natured is irrelevant.

However, it has also been held that the more well known the person is, the less likely is a portrayal of him in exaggerated form to injure his reputation by making him the object of ridicule. Furthermore, something which is clearly intended only as a joke and not to be taken seriously will not be defamatory, and mere injury to feelings or causing annoyance without reflecting on the character or reputation of the party concerned will not be defamatory.

In order to be defamatory, an imputation must tend to lower the person concerned in the estimation of right thinking members of society generally and not just a section of it. There are also various possible defences such as fair comment on a matter of public interest or justification.

However, the application of these general principles to particular facts is not easy and you may still be left wondering quite how far you can go in any particular instance. Even a general disclaimer in the theatre programme or verbally on stage to the effect that no reference to any real person is intended, will not necessarily enable you to escape liability, (although it may be relevant to damages), particularly since you clearly do intend your characters to be based on real people.

The best course you can take is to do what newspapers often do with questionable material, which is to have it read in advance of publication by a specialist libel lawyer, but even he can only give an opinion in the light of information provided to him.

His opinion is not guaranteed to be correct and may well not be correct if he is not given all material facts which sometimes only emerge after a complaint is made. I would suggest that if you are uncertain as to whether any particular part of your work might be defamatory, you should ask yourself the question: "If I were a member of the public reading this or seeing it performed, would I identify it with the real person on whom it is based and, if so, would it tend to lower that person in my estimation or make him appear ridiculous?"

If you answer in the affirmative, the probability is that it will be defamatory. If you answer in the negative, it may still be defamatory because your personal opinion may not be representative of that of the general public or a jury in a libel case, but at least such a test should enable you to avoid anything too flagrant, and you can still get it vetted by specialist legal opinion if need be.

First published April 1996