A News Ltd columnist who was depicted having sex with a dog in the ABC's political satire program The Hamster Decides has won a preliminary skirmish in his ongoing defamation battle with the broadcaster, with a judge finding the segment was capable of conveying "defamatory imputations".
But the judge also found that the segment did not convey the suggestion that the columnist was a "pervert who had sex with dogs".
News Ltd columnist fights sex-with-dog image
Australian newspaper columnist Chris Kenny says an image used by the ABC's political satire program The Hamster Decides had "defamatory imputations". Nine News.
Chris Kenny from the Australian newspaper is suing the ABC, The Hamster Decides presenter Andrew Hansen, and the show's production company, Giant Dwarf, over a segment which appeared on September 11 last year that dealt with media coverage of the federal election.
During the segment, described at length by Justice Robert Beech-Jones in the NSW Supreme Court on Thursday, an image was broadcast of a man strangling and having sex with a dog. A picture of Mr Kenny's face was then photoshopped onto the man's body. Shortly after this the image was shown again, accompanied by the caption "Chris Dog F---er Kenny" (the word was spelt out in full).
The image was shown in the context of comments by presenter Andrew Hansen about Mr Kenny's calls for a reduction in funding for the ABC in his columns and television appearances.
In a statement of claim filed with the court, Mr Kenny says the segment carried three defamatory imputations: that he was a pervert who had sex with dogs, that he was a "low, contemptible and disgusting person", and that his attacks on the ABC were "so disgusting that he deserved to be portrayed as a person who had sex with dogs".
The ABC had sought to have all three alleged imputations struck out, claiming that the ordinary, reasonable viewer was incapable of drawing the conclusions that Mr Kenny alleged.
A central feature of the broadcaster's argument was that The Hamster Decides was a comedy show and that the reasonable viewer could not possibly have taken anything the segment said or depicted seriously.
Justice Beech-Jones upheld this argument in relation to the first alleged imputation, stating that "the reasonable viewer could not possibly consider that such a lightweight show as this would be the forum for exposing bestiality".
However, he found that the other two imputations were capable of being made out, albeit with minor amendments to their wording.
In relation to the second imputation, Justice Beech-Jones described the image in question as "a massive exercise in ridicule which is vastly out of proportion".
"It's an image that's likely to stay in the mind of the ordinary reasonable viewer long after the program has finished, whether it's funny or not," he said.
The decision paves the way for the matter to proceed to a full hearing before a four-person jury, which will decide whether the segment was defamatory or not.