Defamation Is No Joke!

Winston Churchill once remarked that "a joke is a very serious thing," and I agree, especially when it comes to the law of defamation.

Many people believe that a joke is incapable of being actionable defamation.  But they are wrong.

A court will first examine whether the alleged defamatory statement is susceptible of a defamatory meaning. The court will look at the statement itself and all the circumstances under which it was made to determine whether it was understood in a defamatory sense.

One of the best explanations of this concept comes from Prosser on Torts:

"One common form of defamation is ridicule. It has been held to be defamatory to publish humorous articles, verses, cartoons or caricatures making fun of the plaintiff, to heap ironical praise upon his head, to print his picture in juxtaposition with an article on evolution and a photograph of a gorilla, or with an optical illusion of an obscene and ludicrous deformity, readily detected at second glance. It is of course possible that humor may be understood by all who hear or read it as good-natured fun, not to be taken seriously or in any defamatory sense; but when it carries a sting and causes adverse rather than sympathetic or neutral merriment, it becomes defamatory. Thus a speech made after dinner, understood by all present as a harmless joke, may amount to libel when it is published in a newspaper and reaches those who do not understand its circumstances." (Prosser, The Law of Torts (3d ed. 1964) § 106, pp. 759-760.) ‘In order that the defendant’s words may be defamatory, they must be understood in a defamatory sense. It is not necessary that anyone believe them to be true, since the fact that such words are in circulation at all concerning the plaintiff must be to some extent injurious to his reputation-although obviously the absence of belief will bear upon the amount of the damages.’"

No one even needs to believe the statements are true if they are understood in a defamatory sense. This is critically important and an argument I see defense lawyers making all the time with regard to statements made on internet forums or social media sites.

Their argument goes something like this: "Adrianos, you can’t even prove that my client’s statements are even defamatory since they were made on X chat room, and no one takes those things seriously–they won’t believe it.

My response is: "It is not necessary that anyone believe the statements are true if they are understood in a defamatory sense. Take a look at Arno v. Stewart (1966) 245 Cal.App.2d 955, 962-963."

Pretty soon I’m sure I’ll hear a lawyer say: "no one is going to believe what someone Tweets about on Twitter. Who would ever take instant messages of 140 characters in length seriously! I don’t waste my time on Twitter!"

This gets me to thinking. I wonder if Courtney Love’s lawyer will argue that no one will take her arguably defamatory rants on Twitter and other social media sites seriously because of the nature of the medium. I hope he does so I can write a blog post about why such an argument is flawed.

At any rate, let me leave you with a joke from one of my favorite comedians of all time, the late great Rodney Dangerfield.

"My psychiatrist told me I was crazy. I told him I want a second opinion. He said okay you’re ugly too."

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