By Helen Basili
The Queensland Supreme Court on September 28 rejected an appeal by the Australian Broadcasting Corporation to lift an injunction that prohibits the playing of a satirical song, "I'm a Back Door Man".
On August 28, 1997, the federal member for Oxley, Pauline Hanson, issued a defamation writ against the ABC in response to "I'm a Back Door Man" being broadcast on its youth radio station, JJJ. The song is a "cut and paste" of words from Hanson's political speeches.
The song's creator, Sydney-based drag queen Pauline Pantsdown, described the work as "satirical". JJJ program manager Stuart Matchett added: "It is incredibly obvious that it is a cut-up, and we say that [before playing the song]."
After receiving the writ, JJJ continued playing the song, but with the lyrics "so long as children come across I'm a happy person" removed. All broadcasters were required to inform the audience that the song was satirical, which they did.
On September 1, 1997, Justice Ambrose of Queensland's Supreme Court took the unusual step of issuing an injunction "restraining the defendant from continuing to publish the musical composition". His reasons were that, "if an injunction does not issue, [the song] will continue to be published" at a time when an election would likely be called.
Ambrose noted that Hanson's son was being taunted by other boys at his school, who played the song loudly in his presence. In summing up his reasons, Ambrose concluded: "In my view the injury that will be done to the plaintiff and indeed to members of her family if the publication of this material by the defendant continues unabated cannot be adequately compensated for by an award of damages should she succeed in establishing that the material is defamatory".
According to media analyst Mark Pearson, "the courts have been loathe to issue injunctions preventing publication". When injunctions are issued, it is usually when judges are satisfied that a jury "would certainly find the material was defamatory".
Caricature or defamation
In a society in which caricature of politicians is commonplace, it does not appear "certain" that a jury would find the lyrics of "I'm a Back Door Man" defamatory.
The most widespread form of caricature, the cartoon, is virtually exempt from defamation action. Says barrister Ray Watterson: "The lack of cartoon cases may be because the politicians who are often the subject of them wish to avoid adverse public attention, and because of the reputed reluctance of juries to find defamation in cartoon".
The Queensland Defamation Act defines defamation as any imputation that injures a person's reputation, injures a person in their profession or trade or induces others to shun, avoid, ridicule or despise the person.
The act does not define the type of audience for whom the imputation must hold true. However, the ABC's lawyers refer to the case of Copley v Queensland Newspapers Pty Ltd. In this case, imputations were said to be capable of being defamatory if they are likely to be viewed as such by: "reasonable persons of ordinary intelligence drawing on their own knowledge and experience of human affairs and perhaps reading between the lines in light of their general knowledge and experience".
Hanson's lawyers asserted that the song was capable of imputing that Hanson was a homosexual, a prostitute, involved in unnatural sexual practices, associated with the Ku Klux Klan, a man and/or transvestite and involved in sexual activities with children.
That a "reasonable person" could be convinced that any of the above is true of Hanson by a humorous song produced by a drag queen with the alias Pauline Pantsdown is laughable.
The ABC appealed the injunction on the grounds that the judge had "erred in law". He had granted the injunction before trial, said it was unnecessary to decide whether the material complained of is defamatory before issuing the injunction and held that it was sufficient that the material was capable of being defamatory.
Further, the judge failed to apply the standards established by previous common law cases and neglected to consider the defences available under the act — truth, public interest, fair report, fair comment, qualified privilege and political qualified privilege.
Precedent
The ABC's lawyers referred to previous cases, in particular Stocker v McElhinney (1961). In that case, Judge Walsh granted an injunction on the grounds that "... the plaintiffs would probably suffer injury of such a kind and in such a way that damages afterwards awarded might not provide full compensation for such injury".
However, he also stated that the power to grant injunctions should be "exercised with great caution, and only in very clear cases. If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused."
Shiel v Transmedia Production Pty Ltd (1987) was also used to support the ABC's position. The plaintiff requested an injunction to prevent the broadcasting of a story on the TV current affairs show Willesee.
Willesee reporters had used a secret listening device to record a job interview Shiel conducted with a young woman, then edited the recording in such a way that the audience would conclude that Shiel had agreed to employ the woman on the condition that she provide him with sexual favours.
Justice Moynihan condemned the means of collecting the information and recommended prosecution under the Invasion of Privacy Act. He refused to grant an injunction, however, stressing the importance of Walsh's guidelines.
JJJ has refrained from broadcasting "I'm a Back Door Man" since the injunction was issued, but other radio stations have been playing the song with impunity. Had the writ never been issued, it is unlikely that the song would have had such widespread exposure.
Pauline Pantsdown has recently released another song, I Don't Like It, using the same "cut and paste" techniques. The song has had national airplay on JJJ. The film clip, featuring Pauline Pantsdown surrounded by an all-Asian cast of dancers and journalists, is being played on ABC TV's music program Rage.