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What does Kenny’s ABC defamation case mean?

What does Chris Kenny’s $35,000 settlement and apology from the ABC over the Chaser’s dog f*cking joke mean for Australia’s culture? I don’t know, but I must admit I’m worried.

For those who haven’t caught up on this news, you can read David Marr’s summary of the situation here. There was a lot of discussion of this case on Twitter yesterday, and already Kenny was inserting himself into the conversation in an intimidating, litigious tone, requesting an apology and no doubt aiming to remind Twitter users that they better watch what they say about him, lest they get the same punishment as the Chaser team and the ABC got:

ChrisKennyTweet2ChrisKennyTweet3

As I write this post, and discuss what Chris Kenny has said, which is all of course my opinion, something I am completely and utterly entitled to, I am nervous. This morning I’ve been warned privately by a fellow Tweep to watch what I say about Kenny on Twitter, to avoid being sued by him. The inference of course being that he has form in suing people who make jokes about him and therefore I should watch what I say. But if I decide that this Kenny/ABC defamation case has resulted in the demise of Chris Kenny’s credibility, this is my opinion and I should feel completely safe in voicing this opinion. Shouldn’t I? We live in Australia, an open and fair society so we should feel safe to make a joke or to voice an opinion without fear of a law suit. Shouldn’t we? And if we can’t do this, what has happened to our society? What has Chris Kenny, with the support of Tony Abbott, done? The ramifications are far reaching.

Of course no discussion of free speech in Australia can be complete without mentioning Andrew Bolt’s breaching of the racial discrimination act, an action that resulted in howls of protest from the right, screaming that their free speech was under threat. One example of such protest is this statement:

Many left-liberals in the love media have welcomed the decision as revenge against Bolt, rather than railing against it as an illiberal blow against free speech.

I personally strongly support laws that stop people like Bolt mis-representing the truth in order to discriminate against people of a certain race or nationality, and I am strongly opposed to the Abbott’s government’s proposed changes to Section 18c of the Racial Discrimination act. And it’s important to remember the judgement against Bolt was due to him misrepresenting facts in two articles. Simply, he said certain high-profile indigenous Australians were pretending to be indigenous to gain certain benefits when they were not pretending to be indigenous at all. So Bolt wasn’t sued over a difference of opinion, he was sued for misrepresenting facts – an important distinction.

So back to Kenny. It appears to me that Kenny decided that the Chaser’s dog f*cking joke defamed him (DISCLAIMER, I am not a legal expert). In the same way that I could quite easily decide that this Tweet from Kenny defames me in implying that I have a bad-education (which I don’t):

ChrisKennyTweet4

But it never occurred me to sue Kenny over this Tweet, nor any of the nasty responses it elicited from Kenny’s followers after this exchange, nor any of the offensive abuse I quite often receive on Twitter and on my blog. Kenny doesn’t hold back in belittling and ridiculing left-wingers on Twitter, nor does he criticise the abuse given out by his right wing mates. So the fact that Kenny was the one suing the ABC over a joke does seem to me to be infuriatingly hypocritical to say the least (can I say that without being sued?).

In fact, it would appear that the right are only worried about free-speech being impeded when it’s a right-winger’s speech being impeded. For example, you would think that a staunch defender of free-speech – Andrew Bolt – would condemn Kenny’s court case as damaging the Chaser and the ABC’s right to freedom of speech. But no. As noted in Marr’s analysis, Bolt commented in Kenny’s defence saying:

Yes, the graphic was clearly fake. But the issue is that it was obscene, humiliating and viciously abusive…

However, we don’t see such concern from Andrew Bolt or Chris Kenny about obscene, humiliating and viciously abusive images when it comes to right-wing bloggers like Larry Pickering. Pickering regularly publishes highly offensive cartoons of progressive politicians on his right-wing blog, such as one described by Bernard Keane showing Gillard as a “dildo-wielding rapist”. What would Bolt and Kenny have said if Julia Gillard had sued Larry Pickering for the same reason Kenny sued the ABC, by saying that the cartoon implies she is a dildo-wielding rapist and that this implication defames her character? How can they even reconcile their staunch defense of free-speech when it comes to Bolt’s case, but then turn around and try to silence the likes of the ABC’s Chasers from PhotoShopping images in a comedy sketch show? Of course I can only ask these questions, I can’t answer them.

It’s people like me who write a blog, and people like me and thousands of others who partake in Twitter commentary all day every day who should be worried about Kenny’s defamation precedent. And that’s the thing that makes this situation most confusing. Because Kenny is also a regular public commentator, but the difference is, he is paid to offer his opinion and I am not. Kenny is on Twitter numerous times a day and he writes a blog (DISCLAIMER: Kenny’s blog is really badly written and this of course is just my opinion) on The Australian’s website, as well as regularly appearing on Sky News – offering his opinion on a range of subjects. So what if we were all slapped with law suits every time someone felt we had publically offended them? What would this mean for Kenny’s career? Just a quick trawl through Kenny’s twitter feed revealed this tweet with a link to a video called ‘How to behave during an Islamic Massacre’. Kenny also helpfully points out that the video raises questions you’ll never hear on the ABC.

Chris Kenny Tweet

Without forcing anyone to watch this video, I can tell you people of Muslim faith might find it highly offensive. So is Kenny suggesting these offended people should sue Andrew Klavan who made the video? Or should they sue Kenny for posting it on Twitter? What if I decided to sue Kenny because I am deeply offended by his non-factual opinions and constant jokes about climate change?

The thing is, there are literally hundreds of memes, PhotoShopped images and home-made videos floating around Twitter at any given moment – what if each of these was the subject of court proceedings? What would happen to our culture if we felt scared to take part in commentary on social media – about politics, about business and economics, about sport, arts, culture, the environment, for amusement or maybe just to pass time. What if I felt scared to write open letters, such as this one I wrote to Chris Kenny? I feel Australia would be different and for this I am incredibly upset with Chris Kenny (which I assume I can’t be sued for saying?)

Follow @Vic_Rollison


22 comments

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  1. margaret millar

    I find this case greatly worrying.. I have heard swearing often,uscripted, on radio stations
    not often but at times -without this sort of trouble–
    A lot of people do not like swearing –but a lot of Australians swear —
    the ABC badly needs more funding -not a large pay out re swearing! Wondering?? !!

  2. geoffreyengland

    Victoria, great read and there IS an answer to the question you pose….

    “How can they even reconcile their staunch defense of free-speech when it comes to Bolt’s case, but then turn around and try to silence the likes of the ABC’s Chasers from PhotoShopping images in a comedy sketch show?”

    One answer is cognitive dissonance, common in many right wing folk.
    The other is hypocrisy, far more common than cognitive dissonance in right wing folk.

  3. randalstella

    This matter with the Chaser fools ends Kenny’s credibility? How so? It is after all, 2014. This fellow has been an operative since the early 1990s.
    In 1996 the legal defenders of the Ngarrindjeri people at the Hindmarsh Island Bridge Royal Commission were given incontrovertible evidence from the unedited footage of Kenny’s interviews with so-called “dissident” women and one male elder . The contrast between the published versions and the raw footage was – and remains – clear.
    Was it used? No? Why not? It could have been used in those proceedings. At very least it would have challenged the purpose of the calling of that Commission – supposedly on the “revelations” of Kenny’s interviews.
    What keeps the solidarity of the Right so comfortable is the slapdash insularity of the Left.

  4. DanDark

    I will keep my dog locked up now
    you just never know these days
    Kenny is a bull ant, low to the ground, and will chase you to sting you
    hard to kill, almost need a hammer, brick, a foot wont do 😉
    DISCLAIMER; just my opinion…….

  5. winstonclose

    Chris Kenny unhinged mind has no capacity to receive criticism but he’s quite happy to dish it out.
    Typical Conservative commentator.

  6. Kaye Lee

    “The Left’ is often characterised by those who appoint themselves as its opponents as lacking a sense of humour, too ‘politically correct’ and too self-righteous to lighten up and take a joke. No doubt Kenny, Bolt and Blair would argue that the difference in this case is that tax-payers fund the ABC, and should not have to hand over their hard-earned cash for this type of trash.

    And I tend to agree. Let’s see the ABC give back every cent of what it cost them to use Photoshop for thirty seconds. Maybe I’ll spend the spare change on a bus to go see the Great Barrier Reef before it, like the Chaser’s dog, is completely in the ass.”

    Liam Kenny (Chris Kenny’s son)

    Read more at http://junkee.com/in-defence-of-the-chasers-picture-of-my-dad-having-sex-with-dog/19967#hOo2ODrhMLqVTwjp.99

  7. Gail

    Reminded of this disgusting abuse to ex Pm Julia Gillard, very upsetting to remember it. Don’t remember anyone being sued over it!

  8. John921Fraser

    <

    I can only offer my own "Opinion" in relation to Mark Keeny.

    He writes crap.

  9. John921Fraser

    <

    "Kenny" …. I wish I could get his name right.

    I have the same trouble with his stable mate "Nuts".

  10. Carolyn Janson

    Well he just got some criticism from me on Twitter. I’m an age pensioner so he might have trouble getting anything out of me. My point though is that we MUST NOT let people like this lackwit scare us. Take it to them. If we step back they press forward. Stand up and answer in like mode, and all of us, do it. Challenge the pig. Thousands of people saying, I dare you, will make him pull his head in. It’s time to stop being afraid of laws and start taking our rights and our peace of mind back. And we do that by standing our ground – ALL of us. And of course, there’s always Tim Wilson to defend us! LOL

  11. Matters Not

    So Kenny got $35 000 because they used his image engaging in sexual activity with a dog. Fair enough, but how much did the dog get? After all the dog was the wronged party.

    Bernardi’s been warning about beastality becoming the new black. Such a slippery slope.

  12. DanDark

    Or a “Slippery dip” 🙂
    Either way it’s all a very slippery subject

  13. Nuff Said

    You kept a screen capture of a Tweet, without context, from 2012? Um.

  14. Tracie

    The dog should have had more taste… just saying…

  15. kobymac

    So let’s face it – you support our right to be bigots? You can’t have it both ways.

  16. Dan Rowden

    Fair comment

    The defence of “fair comment” applies to comment on matters of public interest. It is a somewhat misleading name, since the defence does not require that the comment be fair, in the sense of reasonable or just, merely that it be an opinion that an honest person, however prejudiced, could honestly hold. A person may publish any comment to the world at large, provided that:

    the comment concerns a matter of public interest. This includes government, the administration of public services and institutions, and matters submitted to public criticism, such as books, plays, concerts or films; the defamatory imputation would be understood by those to whom it is published as a comment, in the sense of being an expression of opinion, not a statement of fact. Any statement of fact must either be proved to be true or to have been protected by absolute or qualified privilege; and the defamatory imputation conveyed by the comment is based upon facts either set out in the publication or sufficiently referred to, which are true.

    Like qualified privilege, the defence of fair comment at common law may be defeated if the plaintiff can establish malice. In the context of fair comment, malice means that the opinion was not honestly held.

    The Defamation Act provides a defence of “honest opinion” (section 31) that is akin to fair comment. It can only be defeated if a plaintiff can establish that the opinion was not honestly held. The defence also protects publishers who publish the opinions of third parties, such as callers to talk back radio and letters to editors.

    http://www.lawhandbook.org.au/handbook/ch24s02s02.php

  17. Pamela

    I do not tweet as I do not have time. FB is time consuming enough, so is full time university and parenting. I shake my head when I see distasteful comics, comments, articles or whatever. The human being has the intelligence to know right from wrong, good from evil. This is called Morals. Before anyone famous or not posts anything on social media why can’t they simply ask the question “would I like it if someone posted that about me?” or “Is this going to hurt that person or organisation?”

    Simple really, we teach our kids morality under an ethical umbrella yet when we reach adulthood it seems ethics and some morals go out the window (only for some).

    If someone writes, talks or draws at a level that causes harm to another human being, then the only way to rise above is to ignore. Their level and lack of respect and intelligence festers on attention.

    The law is open to interpretation irrespective of what the legislation says. Law is not about what is right or wrong but who has the best argument. Sad, I know, but it’s the truth.

    If we expect society to change their ways then society needs to start with those who are intelligent enough to carry on and bypass childlike displays of what the author deems to be worth sharing. If you don’t like something then don’t give it an audience.

    I am amazed at people who I thought would have a degree in journalism or some qualification and present such discriminatory pieces of work, morally unjustified.

    How sad it is that grown men don’t have the tenacity or the intelligence to present something in a way that still provides information or comical relief based upon respect and ethics. It is apparent that they don’t have the tenacity nor the intelligence.

  18. John921Fraser

    <

    "News' mad ranting and ravings of late are just their standard tactics of bludgeoning anyone who dares to have a different voice – indeed dares to challenge their view and place in the world,"

    Greg Hywood
    Fairfax Media

  19. Maria

    Unfortunately the radio stations are all manned by immature mindless Abbott followers who couldn’t come up with a collective NICE thought. Which leaves the audience believing what they say. People gravitate to shock jocks obscene school yard bullying. They have dropped the standard beyond even bogan standards and our illustrious gov are even worse. The worst part is that all the morons are gathered in the same place the parliament and wield great power and their immaturity makes them very scary indeed.

  20. Parker

    The main issue, as I understand it, is that people like Pickering are commenting from a personal or private forum, whereas the Chaser was funded by the public’s taxes. Therefore the “freedom of speech” or “expression” argument is not the same for one as it is for the other.

    You can argue that this if this was approved for public viewing by the ABC management, what does it say about ABC management and would they approve and air Pickering on the ABC, and if not, why one and not the other? Surely ABC media has accountability and responsibility to the public purse, whereas Pickering is responsible and accountable only to himself in these instances?

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