offline cases 1

This page highlights some offline defamation cases in Australia, the UK and other jurisdictions.

It covers -

• introduction
• Brunswick - a model for internet publication
• Whistler and Ruskin - publicity gone wrong?
• Wilde and Eulenberg - plaintiffs in an invidious position
• the Cherry Sisters - artistic criticism in the US
• Grahame Greene, Shirley Temple and Papa Doc - a lesson for the smart set?
• Rasputin and MGM - trouble with global audiences for 'new media'
• Hardy, Hewett and Lohrey - literary defamation in Australia
• Liberace, Cassandra and Daily Mirror - perjury and "laughing all the way to the bank"
• Dering and Uris - another pyrrhic victory?
• Sullivan, Westmoreland, Sharon
• McCarthy and Hellman - spleen and stalinism among the literati
• Falwell and Hustler - satirizing the great & godly in the US

Some more recent cases involving print and broadcast are explored on the following page.

     introduction

The following paragraphs do not present a comprehensive picture of defamation in the print and broadcast media. An itemisation of major cases in different jurisdictions is found in works highlighted in the preceding page of this profile.

This page instead offers a brief discussion of a range of cases over the past 200 years, illustrating -

• changing notions of fairness and free speech
• different standards for the treatment of public figures
• the role of personality in initiating and defending libel action
• questions about whether it is sometimes best to ignore offensive statements
• the uncertain fit between truth, justice and law

Readers of this site should conduct appropriate research before making their own judgements about circumstances, claims and counter-claims.

     Brunswick

In 1848 exiled German ruler Karl II, Duke of Brunswick & Luneberg (1804-1873), heard that he had been maligned in the 1830 Weekly Dispatch, a London newspaper. His manservant discovered a copy at the British Museum and also obtained a copy from the Dispatch's publisher Harmer, who was then sued by the Duke (even though at that time there was a six year limit on initiation of libel action, now a mere 12 months).

The Court of Queen's Bench ruled in 1849 that Harmer's provision of a single copy during the previous year constituted a separate act of publication, with the statutory period for litigation commencing at that time rather than when the Dispatch was printed and distributed in 1830.

Duke of Brunswick & Luneberg v Harmer (aka The Duke of Brunswick's Case) has been a foundation for what constitutes a publication in defamation and that a cause of action arises in each jurisdiction where the material is read. Duke Karl is otherwise famous only for losing the 'Opera Game' in a chess contest against Paul Morphy at the Paris Opera House in 1858.

     Whistler and Ruskin

In 1877 cultural critic John Ruskin slammed James Whistler's Nocturne in Black & Gold: The Falling Rocket with the comment that

For Mr Whistler's own sake, no less than for the protection of the purchaser, Sir Coutts Lindsay ought not to have admitted works into the gallery in which the ill-educated conceit of the artist so nearly approached the aspect of wilful imposture. I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public's face.

Whistler (1834-1903) sought damages of £1000 in a libel suit against Ruskin, claiming that his "reputation as an artist has been much damaged by the said libel".

The jury agreed but apparently did not consider the damage was great, with a derisory one farthing being awarded as damages. Whistler was bankrupted by his legal costs; Ruskin relapsed into madness.

Subsequent critics have questioned whether Whistler's action was founded on an admirable concern to protect his integrity or on hubris, with a badly-judged bid for publicity. All publicity, it seems, is not necessary good publicity ... although Whistler is now often considered the victor.

     Wilde and Eulenberg

Playwright and gadfly Oscar Wilde (1854-1900) sued the decidedly "mad, bad and dangerous to know" Marquis of Queensberry for libel after the peer famously accused him - in a card left with the hall porter at the Albermarle Club in 1895 - of "posing as a somdomite". Homosexual acts were a criminal offence under the 1885 Criminal Law Amendment Act ('Labouchere Act') and remained so until 1967. (Residents of Tasmania had to wait until 1997.)

Wilde's libel action was unsuccessful. He was consequently arrested and tried for sodomy, being sent to hard labour in Reading Prison before dying in poverty in France. The cases arguably shaped English cultural and social life up to and beyond the Wolfenden era.

Responses to Wilde's defamation action have varied, with some figures arguing that having chosen to live among the glitterati (or as an Irish gentleman and aesthete among foxhunting philistines) Wilde had no choice other than to defend his honour.

Across the channel his contemporary Philipp, Prince zu Eulenberg-Hertefeld (1847-1921), a favourite of the wayward Kaiser Wilhelm II, was slower to respond to allegations from socialists and conservative opponents such as the acidulous Maximilian Harden (1861-1927).

Defamation action by Eulenberg and associates was muddied by institutional homophobia and political agendas, with the specifics being lost amid conflicts over the shape of foreign policy, class warfare, the Kaiser's entourage and the market for sensation. It resulted in the end of his career and public life.

     the Cherry Sisters

It is unclear whether a famously 'rotten review' in 1901 ended the theatrical career of the Cherry Sisters, US vaudevillians slammed in a review in Odebolt Chronicle and Des Moines Leader as

Effie is an old jade of 50 summers, Jessie a frisky filly of 40, and Addie, the flower of the family, a capering monstrosity of 35. Their long, skinny arms, equipped with talons at the extremities, swung mechanically, and soon were waved frantically at the suffering audience. The mouths of their rancid features opened like caverns and sounds like the wailings of damned souls issued therefrom. They pranced around the stage with a motion that suggested a cross between the danse du ventre and a fox trot, strange creatures with painted faces and hideous mien. Effie is spavined, Addie is stringhalt, and Jessie, the only one who showed her stockings, has legs without calves, as classic in their outlines as the curves of a broom handle.

The Iowa Supreme Court rejected an appeal by the performers, who had unsuccessfully sought damages for libel. The initial court had commented that

Ridicule is often the strongest weapon in the hands of a public writer; and, if it be fairly used, the presumption of malice which would otherwise arise is rebutted, and it becomes necessary to introduce evidence of actual malice, or of some indirect motive or wish to gratify private spite. There is a manifest distinction between matters of fact and comment on or criticism of undisputed facts or conduct. Unless this be true, liberty of speech and of the press guarantied by the constitution is nothing more than a name

The Supreme court agreed, holding that

One who goes upon the stage to exhibit himself to the public, or who gives any kind of a performance to which the public is invited, may be freely criticised ... The comments, however, must be based on truth, or on what in good faith and upon probable cause is believed to be true, and the matter must be pertinent to the conduct that is made the subject of criticism.

US courts at the federal and state level have tended to offer arts critics greater latitude than courts in the UK and Australia.

     Greene, Shirley Temple and Papa Doc

Novelist Graham Greene (1904-91), in a Night & Day review of Shirley Temple's saccharine Wee Willie Winkey, commented that

infancy with her is a disguise, her appeal is more secret and more adult ... her neat and well-developed rump twisted in the tape dance: her eyes had a sidelong searching coquetry ...

her admirers - middle-aged men and clergymen - respond to her dubious coquetry, to the sight of her well-shaped and desirable little body, packed with enormous vitality

Temple's studio Twentieth Century-Fox sued, with Greene paying £500 in damages and £3,500 in costs after the judge deemed the review "a gross outrage". Night & Day, meant to be the UK counterpart of the New Yorker or Mencken's Smart Set, expired with neither a bang nor a whimper.

Greene's loss has been attributed to the judge's personal foibles and as an instance of middleclass grundyism, a reproof by judge and jury to the bright young things presumed to read Night & Day.

Greene's 1966 novel The Comedians pictured the Duvalier family regime in Haiti as based on corruption, voodoo, murder and torture. Papa Doc's publicists responded by claiming that the book had resulted in a dramatic slump in Haiti's tourist trade, declaring in Graham Greene Finally Exposed that he was a a "pervert" and a "cretin''. Francois Duvalier sued Greene in a French court for ten million francs, winning the case but receiving damages of a single franc.

     Rasputin and MGM

The 1934 'Rasputin' trial in London saw plaintiff Princess Irina Youssoupoff, niece of the slain Russian Tsar Nicholas II, sue Metro-Goldwyn-Mayer for defamation over the studio's gaudy Rasputin & the Empress - starring not one but three Barrymores.

The Princess did not dispute that Rasputin had been murdered at her husband's residence (given that Prince Youssoupoff had written a book claiming credit for the deed) but took offence over the film's suggestion that she had been seduced by the 'mad monk'. She was awarded US$125,000, at that time the largest libel judgment in England, and the Youssoupoffs launched defamation suits in most jurisdictions where the film was exhibited.

MGM thereafter settled for an undisclosed sum, supposedly over US$500,000, and emphasised rubrics such as the disingenuous "This film bears no resemblance to any persons living or dead".

     Hardy, Hewett and Lohrey

Australian novelist and CPA member Frank Hardy (1917-1994) was tried for criminal libel in Victoria during 1951 over alleged depiction in his roman-a-clef Power Without Glory of Ellen Wren, wife of prominent businessman and Australian Labor Party fixer John Wren.

The litigation turned into a pro/anti-communist circus following the High Court's overturn of the Communist Party Dissolution Act 1950 and moves by the Menzies Government for a Constitutional referendum to ban the Communist Party. Hardy's lawyers suvbsequently conceded that they had aimed to throw mud ... and make it stick.

Hardy was acquitted, with Power Without Glory enjoying a momentary celebrity in Australia before disappearing into the stacks along with other famous but unread tracts. That notoriety might have been observed by novelist Hal Porter (1911-1984), who sued over a 1964 review of his autobiography The Watcher on the Cast-Iron Balcony imputing that he sought to provoke a ban through inclusion of offensive language. The 1969 poem Uninvited Guest by Dorothy Hewett (1923-2002) about her former husband Lloyd Davies and his wife provoked action by the aggrieved ex-spouse.

Twenty years later Amanda Lohrey's The Reading Group was the subject of protracted negotiations after former politician Terry Aulich claimed he had been defamed as 'The Senator'. Aulich reportedly received a cash settlement; the novel was reissued in a revised form.

     Liberace and Cassandra

In 1956 an item in the London Daily Mirror characterised US celebrity Liberace in terms that were almost as camp as the performer. Columnist William Connor described the pianist as

this deadly, winking, sniggering, snuggling, chromium-plated, scent-impregnated, luminous, quivering, giggling, fruit-flavoured, mincing, ice-covered heap of mother-love ...

He reeks with emetic language that can only make grown men long for a quiet corner, an aspidistra, a handkerchief, and the old heave-ho. Without doubt, he is the biggest sentimental vomit of all time. Slobbering over his mother, winking at his brother, and counting the cash at every second, this superb piece of calculating candy-floss has an answer for every situation.

There must be something wrong with us that our teenagers longing for sex and our middle aged matrons fed up with sex alike should fall for such a sugary mountain of jingling claptrap wrapped up in such a preposterous clown

As a performer in pre-Wolfenden Britain Liberace complained that the words were an imputation of homosexuality. He testified that he had never engaged in homosexual acts, declaring "I am against the practice because it offends convention and it offends society".

The jury apparently agreed, awarding £8,000 damages. It is unclear whether the award was a poke in the eye of 'big media' or a reflection of the UK public's conflicted ideas about sexual mores, camp and "boys who want to marry a gal just like mom".

Liberace, having perjured himself, boasted "I cried all the way to the bank".

     Dering and Uris

Leon Uris (1924-2003) and publisher Bantam faced defamation action in 1964 over his novel Exodus. Dr Wadislaw Dering, a former concentration camp inmate, claimed that he had been defamed through portrayal as having carried out medical experiments at Auschwitz on human subjects with callousness and brutality.

In a Solomonic judgement the court ruled that although the callousness of Dr Dering might have been exaggerated, he had betrayed his duty to refuse to participate in medical experiments that were inherently criminal, irrespective of the way that they were carried out. In finding that he had been defamed the court awarded him damages of "the smallest coin in the realm" - a half penny, as farthings had disappeared since the tim of Ruskin - and awarded costs against him.

Uris recycled the trial in his 1970 novel QB VII.

     Sullivan, Westmoreland and Sharon

The landmark Sullivan v New York Times decision by the US Supreme Court related to action by individuals, including Montgomery police commissioner L.B. Sullivan, regarding a civil rights campaign advertisement that had appeared in the Times. Sullivan and Mayor Earl James, neither of whom were specifically named in that ad, initially won US$500,000 each in trials in the state court at Montgomery. 

The Times successfully appealed to the Supreme Court, which held in 1964 that - in the absence of malice - the US Constitution prohibits a public official from recovering damages for a defamatory falsehood related to his official conduct.  Malice involves publication of a statement "with knowledge that it was false or with reckless disregard of whether it was false or not."

The decision was characterised as reflecting a profound national commitment to the principle that debate on public issues should be uninhabited, robust, and wide-open, potentially featuring "vehement, caustic and unpleasantly sharp attacks" on government and public officials.

Sullivan famously cleared the way for aggressive reporting of the civil rights and antiwar movements. Questions about malice featured in litigation by former US Army General William Westmoreland against the CBS television network for US$120 million over the 1982 Uncounted Enemy: A Vietnam Deception current affairs program that had accused him of exaggerating American military performance during the Vietnam war. The protagonists reached a private settlement, after an 18 week jury trial, in what amounted to a surrender on both sides. Fighting about Vietnam and its lessons continues unabated.

In the Sharon case Israeli general (and later Prime Minister) Ariel Sharon was accused by Time Magazine of plotting with Sheik Pierre Gemayel to avenge the death of his son through action in 1982 by Lebanese Phalangist units against Palestinian camps at Sabra and Shatila. The court found that the Time article was both false and defamatory.

     McCarthy and Hellman

US novelist Mary McCarthy, known for the energy of her literary criticism and disrespect for stalinists among the New York chattering classes, denounced playwright Lillian Hellman in a 1980 television interview with talkshow host Dick Cavett. Most pithily, in what appears to have been a rehearsed response, McCarthy said that "every word she writes is a lie, including 'and' and 'the'".

Hellman, supposedly more in sorrow than in anger, responded by seeking several million dollars damages. That defamation suit against McCarthy was dropped after Hellman's death.

McCarthy, who appears to have deliberately provoked the litigation as a mechanism for exposing Hellman's equivocal relationship with the truth, commented

If someone had told me, don't say anything about Lillian Hellman because she'll sue you, it wouldn't have stopped me. It might have spurred me on. I didn't want her to die. I wanted her to lose in court. I wanted her around for that.

Hellman has since been characterised as "a compulsive liar" who did not hesitate to threaten legal action against those with different political views or merely a questioning attitude to her self promotion and who had blithely appropriated other people's lives in works such as her 'memoir' Pentimento.

     Falwell and Flynt

US adult magazine Hustler in 1983 featured a parody of an advertisement (modeled on an actual Campari campaign) implying that high profile fundamentalist crusader Jerry Falwell (1933- ) had a drunken incestuous relationship with his mother in an outhouse.

Falwell was awarded US$150,000 in damages for emotional distress in a jury verdict after suing for libel, invasion of privacy and intentional infliction of emotional distress. The Supreme Court upheld Hustler's appeal, holding in a unanimous opinion that public figures such as Falwell may not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact that was made with "actual malice."

The Court noted that under the First Amendment protection of free speech surpassed the state's interest in protecting public figures from offensive speech, so long as such statements could not be reasonably be construed as providing actual facts about its subject. The average Hustler reader would recognise that the offensive item was satirical, rather than a depiction of Rev Falwell's activity when not leading the Moral Majority.

Falwell has fared better than Hustler and its proprietor Larry Flynt, recently gaining notoriety after apparently identifying the 9/11 bombings as punishment for the gay community, wiccans and the ACLU. Hate speech against gay people is apparently less worthy of censure than coarse humour about the righteous.





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