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
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.
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