Sacha Baron Cohen Defeats Defamation Action – What Would Happen If This Claim Had Been Pursued In The Courts Of England & Wales?

British comedian, Sacha Baron Cohen, known for many famous characters such as Ali G and Borat, has recently defeated defamation action brought by a former Alabama Judge, Mr Moore. Mr Moore had claimed that he was wrongly portrayed as a paedophile by Mr Cohen on his political satire show Who Is America?.

The video is in traditional Cohen style, involving a one-on-one interview. It sees Mr Cohen claim that he has technology that would allow him to detect paedophiles in the form of a wand similar to those used by airport security to detect metal objects. Mr Cohen proceeds to wave the wand over himself and there is silence but when he waves it over Mr Moore, it beeps. Mr Cohen says several times in the video that the detector must be broken, tries to find reasons why it may be malfunctioning and states clearly that he is not accusing Mr Moore of being a paedophile when Mr Moore storms off claiming that Mr Cohen is alleging that he is a paedophile.

The Judges of the Appeal Court in Manhattan found unanimously in favour of Mr Cohen on the basis that:

Another important factor in the decision was that Mr Moore signed a waiver before the interview took place consenting for the interview to be broadcast.

What would happen if this defamation action had been pursued against Sacha Baron Cohen in the Courts of England and Wales?

The aim of this blog is to consider what would have happened if the defamation case had been pursued against Sacha Baron Cohen in the Courts of England and Wales. The first point to note on this is that it is very unlikely that the Courts of England and Wales would have accepted jurisdiction to deal with this case, as, whilst Mr Cohen is British, the interview presumably took place in the USA, was presumably broadcast mainly in the USA and, given that Mr Moore resides in the USA, the damage to his reputation is likely to largely be in the USA. This blog is therefore entirely hypothetical.

The law of England and Wales does recognise that innuendos (i.e. where a reasonable person would derive a different meaning from the actual words spoken by reading between the lines) can be defamatory. Whilst Mr Cohen denies at several points in the video that he is accusing Mr Moore of being a paedophile, the underlying intention was clearly the opposite. Usually, in defamation proceedings, the Court would determine the meaning attributable to the meaning complained of at a relatively early stage.

There can be very little doubt that the intention of Mr Cohen was to comically suggest that Mr Moore was a paedophile. A serious claim that someone is a paedophile would be defamatory in nature and further, such a claim would most likely pass the test set by section 1 of the Defamation Act 2013 in respect of a Claimant showing that the statement has or is likely to cause him serious harm. The offending video is, as found by the first instance Judge in the USA, very clearly intended to be a comedy. It is therefore entirely possible that a Judge would conclude that Mr Moore had not passed the serious harm test due to reasonable observers being unlikely to take such comments seriously and therefore the damage to Mr Moore’s reputation would be marginal to non-existent. If Mr Moore failed to pass the serious harm test, his claim would fail.

Whilst the Human Rights Act 1998 (HRA) is currently under review by the Government, at the time of writing this blog, it is still in force. This is relevant as the HRA binds all emanations of the state (i.e. all public/Governmental bodies in England and Wales). This would obviously include the Courts. This means that a Judge presiding over a case such as this would need to reach a decision that is consistent with the human rights contained in the HRA. This often involves a balancing exercise for the Courts between competing rights. In this specific case, the competing rights weighing in the balance would be the right to:

Alleging someone was a paedophile would amount to an interference with their right to respect for private and family life (presuming such an accusation was untrue). The finding that the video was clearly comedy and nothing more is likely to limit the weight of any claim that the video breached Mr Moore’s right to respect for private and family life.

The consent form signed by Mr Moore would not be an absolute defence to a claim brought in England and Wales, as Mr Moore clearly would not have known the content about to be created at the time that the form was signed. In this regard, there clearly must be an argument that could be formulated to invalidate the form on the basis that the purpose of the interview was misrepresented to Mr Moore. This would of course turn on the facts/discussions leading up to the signature of the form in question.

Even if an argument was successful in misrepresentation resulting in the form not being contractually binding upon Mr Moore, the Courts would still consider the execution of that document in the balance of evidence to determine what the just outcome of the case was likely to be. The fact that Mr Moore had agreed to the interview being broadcast without waiting to see what the content was going to be, especially when set in the context that the interviewee used to be a Judge himself and accordingly should have been aware of the risks, is likely to be viewed as an acceptance of a certain degree of risk in terms of the interview going badly. This combined with the finding that the video was plainly and clearly comedy would in the writer’s opinion lead Judges to conclude that they must find in favour of Mr Cohen on the basis of his right to freedom of expression.

The above demonstrates that the outcome of the case if pursued in the Courts of England and Wales, is likely to have been the same as the US case for very similar reasons.

Comment

The video has now gone viral following the decision being reached and accordingly, is a prime example of how pursuing a defamation action can, in some circumstances, go horribly wrong/have the opposite effect to that intended by pursuing such a claim (i.e. in most cases to obtain an injunction to stop future publication). This is precisely the reason why expert advice should be sought at an early stage so all of the factors, whether legal or wider implications, can be considered before matters become even more public by pursuing litigation.