BRITAIN’S FRANKIE BOYLE: The Meaning of ‘Defamation’ Across the Atlantic

frankie_boyle_photo5Between the way the world thinks of him and the way he doesn’t want anyone to think of him, the whole stuff about reputation seems to loom pretty large in British comedian Frankie Boyle’s world. From all indications, the brash, irreverent comic doesn’t seem to sweat what anyone calls him as long as no one calls him a “racist.” In Boyle’s worldview, for anyone to call him that amounts to something of a declaration of war. And he could hit the hapless aggressor pretty hard in the wallet and set the aggressor back by many thousands of pounds or dollars. At least, in Britain! Just ask the Daily Mirror, one of Britain’s major tabloids, which took a big hit last fall for apparently ‘messing with the wrong marine,’ as the Americans would say. But first, here’s what happened:

On July 19, 2011, the newspaper published an article in which it speculated about Boyle’s chances of returning to his comedy show on Britain’s Channel 4 television station: “Racist comedian Frankie Boyle could soon be returning to TV despite upsetting thousands of viewers with his sick jokes,” began the article, which also claimed that Boyle was “forced to quit” the BBC panel show Mock the Week owing to his brand of comedy. Feeling deeply wounded by the article, Boyle sued the paper for defamation in a London court; he claimed that the article was defamatory and that it brought him into “odium and contempt”─ stock phrases in many a defamation lawsuit. (By the way, to commit “defamation” against a person simply means to say things about that person which tend to damage or otherwise lower that person’s reputation in the community. If those offending words appear in written form, the harm that results is called a “libel,” as in Boyle’s situation.) Boyle claimed in court that just because he plays characters who express racist views doesn’t mean that he himself is a racist. “These are phrases that a racist would use”, Boyle said. “There is no way they are an endorsement of racist terminology. It is the absolute opposite of that.” In support of Boyle’s position, his lawyer stated that it would be ‘political correctness gone mad’ if Boyle were labeled racist for using racial language in his jokes.

For its part, the paper showed no remorse over the publication and instead stuck to its guns, claiming that Boyle was a ‘racist comedian’ who exploited negative stereotypes of black people for ‘cheap laughs.’ In a further slap at Boyle (who writes a column for a rival newspaper The Sun) the Mirror told the jury that if they should find that Boyle had in fact been ‘defamed’, they should merely award him the sum of 45p (forty-five pence), the price of a copy of the Daily Mirror. Ouch! Well, in the end, the jury came back and Boyle got the last laugh as the jury found that the paper had indeed defamed him. As a result, the court awarded Boyle a total sum of more than ₤54,000 (about US$ 80,000-plus) in damages plus court costs against the Daily Mirror.

Yet, as one might expect, considering the close ties between the pop cultures of the Britain and America, not a few folks, especially in the comedy and media worlds, have wondered if Boyle could have won his case so brilliantly if he had brought the defamation lawsuit in America instead. Well, for starters, if Boyle were merely a regular guy who either just drives a cab or works at the post office, his case probably would have gone the same way on both sides of the pond. For example, if Pete defames Joe who is a private person (think an average Joe) and then Pete can’t prove that what he said of Joe was true, then the defense fails and Pete becomes liable to Joe for defamation. But where the situation involves a ‘public figure’ (think a celebrity) then the matter is handled in a different way in each country. And this is where Boyle, who is undoubtedly a ‘public figure,’ would have faced a totally different ball game if the lawsuit would have been brought in the U.S.

It used to be that defamation cases were handled the same way on both sides of the pond until the 1960s when America decided that ‘public officials’ and ‘public figures’ would have to jump more hoops and work much harder than previously before they can win any defamation lawsuit that they choose to bring against anyone, whether a private person or a media organization. This meant that it is no longer just enough that something said about a public official or public figure was not true; a greater amount of fault on the part of the person who made the statement was now required. In short, a public official or public figure who files a defamation suit could still lose the case even if the statement made against him is later shown to be false. Tough stuff!

This new rule is called the ‘actual malice’ test, and two things are required in order for someone to fail the test and thereby become liable for defamation when sued by a public official or a public figure: first, the person must have intentionally made or published the false statement with the knowledge that the statement was false; or second, that the person chose to make or publish the false statement when the circumstances were clearly such that he should have known that the statement he was making or publishing was false. (In this second scenario, you might include situations like someone, for instance, deliberately looking away from another person who is trying to show him that the statement was false; or situations where someone simply chooses to believe some crazy ‘Mickey Mouse’ kind of talk that ‘pigs can fly.’ Instances that come under this second scenario are often regarded as ‘willful blindness.’)

At the time the new rule of ‘actual malice’ was adopted, it was said that the First Amendment which commits America to the principle of ‘uninhibited, robust and wide-open debate’ on matters of public interest or public issues needed the new approach in order to provide greater protection for ‘free speech.’ In the 1964 case where this new rule was established, the New York Times had published an ad put forward by an interest group; the said ad detailed the alleged mistreatment of civil rights activists by the Alabama authorities. It turned out that some of the facts stated in the ad were inaccurate, for example, like how many folks had been arrested; exactly where the police had been positioned on the campus; what particular song the protesters had been singing and more. When the public official in charge of the police sued the New York Times for defamation, America’s High Court said it didn’t matter that these statements of fact were in fact false. The court stated that under the First Amendment, no defamation was in fact committed as long as both the Times and those who paid for the ad didn’t knowingly or intentionally publish the false statements nor did they publish them under circumstances where they clearly should have known that the statements were false.

So, as it happens, Americans are willing to put up with some ‘false’ stuff in order to protect the right to free speech and to preserve their highly prized culture of spirited debate on public affairs.

But exactly why, in Britain, did Boyle win his case against the Daily Mirror? Well, it’s fair to say that the jury simply didn’t buy the defense’s story: they didn’t think it was true that Boyle was a ‘racist’ or that he was ‘forced to quit’ the Mock the Week show because of his racist views. The defense’s style itself could be described as something of a ‘kitchen sink’ strategy that allowed the defense to hedge its bets by playing the kind of hand that both an English lawyer and an American lawyer might choose to play in defending a case like this one. Essentially, the defense claimed that the offending statement was either ‘true’ or was an ‘honest comment on a matter of public interest.’ Interesting tactic: first, to show that the statement was true, the defense trotted out some of Boyle’s quite offensive remarks on the Channel 4 comedy show Tramadol Nights, including the Madeleine McCann crack as well as his Twitter quips about Paralympic athletes. Then the defense came up with the public interest commentary that many an American defamation lawyer would recognize. Pretty smart hedge!

Yet, in hindsight, Boyle’s opponents did not seem to have done themselves any favors with the whole Mock the Week business. It seems like the overall atmosphere at the jury trial tilted against them when they fought for but lost that branch of their case. For example, a witness with firsthand knowledge of the situation actually showed up at the trial to testify that Boyle was not in fact canned from Mock the Week. Even worse for the defense, the witness stated that the show’s producers had hoped that Boyle would make a return appearance on the show in the future. Apparently, the Daily Mirror might have looked better just sticking with general claim of ‘racism’ against Boyle and no more.

But seriously, how would Boyle have fared in an American court? Short answer: Not as well as he did in Britain! Not even close. For starters, America, unlike Britain, is First Amendment territory. So, predictably, the ‘public figure’ business would have been front and center of this kind of case in an American court and with that (you guessed it!) comes the ‘actual malice’ standard as well. All of this would have created massive complications for Boyle and thereby jeopardized his odds of winning. Incidentally, in the British case, the Daily Mirror won a small victory when it got the court to reject Boyle’s claim of ‘malicious falsehood’ in the Mock the Week imbroglio. In an American court, a ruling that there is no malice would be a huge factor that could only weigh down a public figure’s odds of winning a defamation lawsuit against a newspaper which is defending itself on grounds of public interest.

In the end, considering the potential impact of these big issues on everyday life in any society, the Boyle-Daily Mirror case is one of those situations that remind any observer that, ‘special relationship’ aside, Britain and America are still different places after all. As far as comedy goes, America, thanks to the First Amendment, is the best place on earth not only for anyone to be a comedian but also for anyone in the mood to mess with comedians. In our case here, it means that a dude like Boyle, who would say anything about anyone but cannot stand for certain things to be said about him, obviously is living on the right side of the Atlantic ── outside America, that is. For the Daily Mirror, well, living outside America apparently seems like a different ball of wax.

***

    Author’s Note:

:*** As promised, my new book “Comedy Under Attack…” which covers political correctness and all the big issues in comedy today is now available on amazon.com and in stores. As a service to comedy, please post your comments about the book on Amazon, Goodreads, Facebook, Twitter and other places, so that together we can drive this ‘hot debate’ even deeper into the public square…

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