A tasteless joke or a claim in defamation?

The recent decision from Scotland in the Sheriff Court case of Cowan v Bennett has once again shown some of the difficulties for a claimant to establish a defamation claim.

There is no complete or comprehensive definition of what constitutes a defamatory statement.  It is generally considered that a defamatory statement lowers the reputation of the person being defamed in the eyes of right thinking members of society or exposes the person to public hatred, contempt or ridicule.  This test allows for some flexibility in its interpretation and what is deemed defamatory generally evolves with changes in society.

The case of Cowan v Bennett involved two former friends, the claimant being Mr George Cowan, a painter and decorator and the defendant, Mr Mark Bennett.  Mr Bennett was renowned to be "gregarious and outspoken" and the Court heard that he participated in and enjoyed "banter" with the people he met.  As such, Mr Bennett began referring to Mr Cowan as "the gay painter".  Mr Cowan was a heterosexual and had taken offence to the continuous comments of homosexuality.  Mr Cowan brought an action for defamation claiming £10,000 in damages.

The Sheriff had to consider whether the jokes which were made in bad taste amounted to defamation.  The Sheriff specifically looked at the context of the comments and with reference to an earlier decision decided that the court had to consider how the hypothetical reasonable listener, who is not naïve but is not unduly suspicious, would have considered the words.

The Sheriff also considered whether an allegation of homosexuality could be determined to be defamatory.  There have previously been a number of instances where false allegations of homosexuality have been brought in actions in defamatory.  In 1999 in the case of Prophit v BBC, an allegation of homosexuality was found to be defamatory to the claimant as they were part of a religion which considered homosexuality sinful.  In 1916 in the case of AB v XY the claimant brought an action against the defendant in that not only was the allegation of homosexuality defamatory but also accused him of criminal conduct (homosexuality being illegal in 1916).

The Sheriff commentated that in 2012, times have moved on.  He explained that homosexuality is widely protected by law and is accepted in society.  The Sheriff concluded that no reasonable person would have formed the view that the Mr Bennett was seriously suggesting that Mr Cowan was a homosexual.  The allegations of homosexuality by Mr Bennett had not caused any damage to Mr Cowan's reputation and the Sheriff determined that the fact that someone is homosexual cannot lower their reputation in the eyes of right thinking members of society.  Mr Cowan's claim in defamation failed.

Although it is a Scottish case, it is an example of how the law has evolved, and no doubt will continue to do so, to reflect the change in people's attitudes and society generally.

Posted on: 20/11/2012

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

Back to News articles
Back to News articles

Sign up to email news

Sign up to receive email updates and regular legal news from Rollits LLP.

Sign up