Free Speech versus Privacy: British comedian Louise Reay sued by ex-husband

As it happens, comedians tend to have extroverted personalities and considering the nature of their jobs, that isn’t exactly surprising. Yet, they also have a private life and sometimes they actually do draw some of their comic material from the experiences of their private lives just like their other experiences. Problem is, other people in the private lives of comedians may not be so extroverted themselves and so may rather want their private business kept out of the knowledge of the public. So, as one might expect in such situations, comedians do sometimes actually get sued by aggrieved family members who feel victimized when comedians wash domestic laundry in public. The latest episode in this sort of saga comes from Britain where comedian Louise Reay and her ex-husband Thomas Reay are currently embroiled in a defamation lawsuit that has been framed as a free speech case, despite being accompanied by some menacing invasion of privacy allegations.

First, here’s what happened: In 2017, comedian Louise [Beaumont] Reay, put together a 50- minute show titled Hard Mode in which she purported to discuss issues of censorship and authoritarianism with references to China and the BBC. However, the show also contained references to personal details of her life with her ex-husband, Thomas, the plaintiff in the current defamation lawsuit. Upon learning of the contents of the show [presented at the Edinburgh Fringe Festival and in London], Thomas sent Louise a written complaint demanding that she stop talking about the said matters in the show. He subsequently filed a lawsuit against her over the contents of the show, alleging defamation, invasion of privacy and data protection, and sought £30,000 in damages plus costs and an injunction demanding that she refrain from making [publishing] further statements about him.

The plaintiff’s side stated that after clearly identifying him [the plaintiff] both verbally and in still and moving images, the defendant-comedian then proceeded to present private information about the plaintiff and his relationship with the defendant which pushed “the entirely false suggestion” that his relationship with the defendant was “an abusive one.”

Given how commonplace it is for comedians to talk about their personal lives in their work, this lawsuit is such a big deal especially in regard to how a defeat for her in this case might impact the work habits of comedians who think it permissible and safe to include personal life stuff in their material. There is an undeniable chilling effect here, whatever the extent. Perhaps perceiving the significance of this factor, the defendant-comedian Louise Reay, the laureate of the 2015 Alternative New Comedian of the Year award, has opted to invoke the camaraderie of her comedy peers by framing this case as a free speech matter of immense implication for the comedy community. Thus, she has set up a crowdfunding website (GoFundMe) for her legal defense and her comedy peers have rallied around her.

“As standup comedians I believe it’s the very definition of our job to talk about our lives and social issues, so this has become a free speech issue and free speech means everything to me,” she said on the crowdfunding site.

Curiously, though, despite her free speech stance, upon initially receiving his written protest, she did remove the offending references to her husband in subsequent presentations of the show.

(By the way, in plain language for simple folk, liability for defamation arises from the making of false statements of fact that injure the victim’s reputation in the community.)

But how will her free speech defense play out in this defamation lawsuit? Will it fly any?

Well, for starters, it is worth noting that her free speech defense to the defamation lawsuit would have fared way better in an American courtroom than in a place like Britain thanks to America’s world-famous First Amendment whose goal is to ensure that debate on matters of public interest is “robust, uninhibited and wide open.” Yet even in America, in order to enjoy such free speech protections, the offending statements must not be knowingly or recklessly false. And of course, they must relate to discussions about matters of public interest or concern public figures and officials. Since her ex-husband, the plaintiff, presumably, is a private person and the facts about his life and their failed marriage are not matters of public interest, she likely would have had trouble mounting a free speech defense over here in America if she would have been an American defendant. So, long story short, her case probably would have been decided over here in America the same way the British courts are going to decide it, that is to say, like a regular defamation case with no frills.

So, without any First Amendment-style interventions, how will this comedian’s available defenses play out in an old-style defamation court litigation?

Well, from all indications, let’s just say there is some heavy lifting to be done. To this comedian’s peril, it seems that while addressing the vexed issue of censorship in society, she rather chose to take her eyes off the ball for a bit and took an unrelated and quite irrelevant dig at her ex-husband. Yet, being a comedian in a situation such as this, her most obvious line of defense seems to be an assertion that this whole thing was simply a joke being made by a comedian. Her other defense [already foreshadowed in some of her statements] is something of a de minimis claim, namely, that we’re simply dealing with a mere two-minute portion of a 50-minute presentation. In perspective, if she can prevail on the first point about it being but a joke, there will be no need to try to rely on the second point about it being but a rather tiny portion of the entire show. Conversely, if she loses that argument, then the two-minute factor won’t help her.

However, for her to win the argument on the “joke” front, it has to be clearly shown at least that the references to her ex-husband were both intended and understood as a joke by its listeners or audience. Only problem here is, as the plaintiff’s side claims, is that he was clearly identified in both still and moving images which were then accompanied by factual statements about him and his marriage to the defendant which portrayed him as an abusive person. The plaintiff alleges that these statements of fact were false and thus defamatory. Question is, will the judge agree with the plaintiff’s version of the matter or will he instead think that the statements were just a joke and would have been understood by reasonable people who saw the images and heard the statements as just a comedian making a joke. (By the way, rare though it may be, someone can still be found liable in defamation for a joke because as the old saying goes, one is not allowed to “murder the reputation of another in jest”.)

And then, there is the invasion of privacy claim which is a straight up tort matter that stands separate and apart from the defamation claim. This concerns the right of people to be left alone in their personal spaces. And in terms of a plaintiff proving somebody’s liability, this claim seems to be less complicated than the defamation one where arguments about free speech and opinion issues could muddy the waters and create uncertainty. Not so here. In a situation such as the present case where it is alleged that, without the plaintiff’s consent, the show [Hard Mode] presented personal information about the plaintiff [Thomas] together with still and moving images of him plus other information about what he did during the marriage, there seems to be enough ground for the court to find an unlawful invasion of privacy. That is, if the allegations are in fact proven. Of course, where it is shown that somebody’s privacy has been invaded by another, the courts can always issue “injunctions” to get the offender to stop doing the things complained against.

Also, some might be wondering whether it helps her overall case that in subsequent presentations of the show, she did yank the offending portions of the show upon receiving the plaintiff’s initial complaint or protest about the matter. Well, aside from showing that she maybe realized that she was acting wrongfully, the removal of the said offending portions will probably not absolve her of liability for defamation and invasion of privacy if such liability is otherwise found to exist. More likely, in such a situation, it will be a factor in her favor when the court is assessing what damages to award to the plaintiff.

In the end, whichever way this ends for award-winning comedian Louise Reay, it will likely rank among the most serious cases anyone has yet brought against a comedian for family-related personal information contained in their comic material. Certainly, it is pretty smart of the comedy community to be paying such close attention to it. To be sure, this is a genuine concern that exists on both sides of the Atlantic.

 

(***Breaking News: A sassy new genre of comedy just arrived on the scene ; it’s called  Muckraking Comedy.   Stay current and read all about it at Paley Matters. Enjoy!  https://paleymatters.org/the-brave-new-world-of-muckraking-comedy-feeb86ec4115)

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