The following is reprinted from the April 2009 edition of the MLRC MediaLawLetter, the leading monthly news publication for media defense lawyers in the United States:
In Doe v. HBO, Los Angeles Superior
Court Throws Out Libel-in-Fiction Case
Against Sacha Baron Cohen’s “Da Ali G Show”
Comedic Statements Could Not Be Believed,
and Plaintiff Was Libel-Proof Anyway
Michael Cleaver and Russell Smith
a decision that could benefit comedy writers, performers, television
broadcasters, and film studios across the United States, Channel Four Television
Corporation (“Channel 4”), the UK’s second largest television broadcaster and
the originator of “Da Ali G Show,” starring Sacha Baron Cohen (“Cohen”), has
defeated a libel case filed in Los Angeles by a plaintiff who sought millions
of dollars in damages, all allegedly due to the inclusion of her name in a
Background of the Case
The Plaintiff originally sued Home Box Office, Inc. (“HBO”), Cohen, “Da Ali G Show,” and 50 unnamed “Doe” defendants. In October of 2007, the Plaintiff was persuaded to voluntarily dismiss the entire complaint, with prejudice, as to all of the named defendants, in exchange for the substitution of Channel 4 as Doe Defendant No. 1. This was based on the theory that it was Channel 4, the foreign distributor of the show, not HBO, which licensed the specific broadcast of the show in Finland that ended up on YouTube, with the Plaintiff’s name in it.
In her complaint, the Plaintiff alleged that the broadcast defamed her. In the episode in question, during a spoof interview with Gore Vidal, Cohen’s Ali G character remarked as follows:
Ain't it better sometimes, to get rid of the whole thing rather than amend it, cos like me used to go out with this bitch called [Jane Doe] and she used to always be trying to amend herself. Y'know, get her hair done in highlights, get like tattoo done on her batty crease, y'know have the whole thing shaved – very nice, but it didn't make any more difference. She was still a minger and so, y'know me had enough, and once me got her pregnant me said alright, laters, that is it. Ain't it the same with the Constitution?
Granting Channel 4’s motion for summary judgment, Los Angeles Superior Court Judge Terry Friedman, in a pro-media ruling that apparently is only the second libel-in-fiction decision in the television context (the first being Frank v. National Broadcasting Company, a New York decision dismissing a libel suit against Saturday Night Live), decisively threw out the lawsuit, holding as follows:
No reasonable person could consider the statements made by Ali G on the program to be factual. To the contrary, it is obvious that the Ali G character is absurd, and all his statements are gibberish and intended as comedy. The actor, Sasha Baron Cohen, never strays from the Ali G character, who is dressed in a ridiculous outfit and speaks in the exaggerated manner of a rap artist. Ali G’s statements are similarly absurd. For example, prior to the reference to Plaintiff, while ‘interviewing’ the author Gore Vidal, Ali G refers to the Constitution of the United States as having been written on two tablets, clearly intended to confuse the Constitution with the Ten Commandments. Altogether, the program is obviously a spoof of a serious interview program. No reasonable person could think otherwise.
the same interview about which the Plaintiff complained, “Ali G” also states
that Moses was involved in writing the Constitution, and that author Gore Vidal
is a world-famous hair stylist (apparently mistaking Mr. Vidal for Vidal
Sassoon). Elsewhere in the same episode, Ali G states that actor Denzel
Washington lives in George Washington’s former home at Mount Vernon, that John
Paul Jones had no arms or legs, that the world is running out of gravity, that
gravity was discovered by “Sir Isaac Newton-John” after shooting an apple from
William Tell’s head, and that euthanasia refers to the killing of elderly
people by youth in Asia.
Based on the “content of the program” (i.e., the context in which the statements were made), the court held that the Plaintiff could not prove that the statements declared or implied a “provably false assertion of fact,” and that the statements were not “susceptible to [a]… libelous meaning.” Much less could the Plaintiff prove that the statement at the core of the lawsuit, namely, that the Plaintiff had sex with a fictional character, was factual. At oral argument, Judge Friedman compared this allegation to a claim that a real person could have sex with “Bugs Bunny.”
the Court found that the dissemination of the allegedly libelous statements by
Channel 4 could not have caused the Plaintiff further damage, beyond that allegedly
resulting from the original HBO broadcast.
In finding the Plaintiff to be libel-proof
with respect to the allegedly offending statements broadcast by Channel 4, the
court noted that “[the] Plaintiff attests in discovery responses that the
damages all flow from a rebroadcast of the Program [prior to the distribution
of the episode in Finland]…. Accordingly,
no other damages flow from any subsequent rebroadcast in Finland or as a result
of YouTube rebroadcasting … the Program.”
The court’s decision is available online by here.
The winning brief in favor of summary judgment is available here.
4, which incidentally developed and produced countless innovative films such as
Slumdog Millionaire, The Crying Game, Trainspotting, The Last King
of Scotland, and Four Weddings and a
Funeral, is happy not only with the result in the “Ali G” case, but also
with the low legal fees that made the defense possible. As noted by the company in an unusual press release
following the victory: “This action was fought with the litigation support
services of SDD Global Solutions, the India arm of Channel 4’s U.S. counsel,
SmithDehn LLP, in a groundbreaking case where ‘outsourcing’ has proved to be a
creative solution to running a robust defense.”
law-trained Indian attorneys at SDD Global conducted the legal research and
drafted all of the preliminary drafts of court papers in the litigation,
including Channel 4’s motion and brief for summary judgment, which allowed
Channel 4 to fight and defeat the lawsuit, rather than settling in order to
avoid burdensome legal fees.
Sanjay Bhatia, SDD Global’s Head of Operations, commented: “This is a case where outsourcing created more work in the U.S., rather than less. Because our team made the defense affordable, U.S. lawyers were able to do the things in the U.S. that they do best there, such as strategizing, supervising, editing, and appearing in court. The implications of this case are huge. With legal outsourcing, baseless lawsuits can be defeated on their merits, instead of settled simply out of fear of legal fees.”
Russell Smith and Michael Cleaver of SmithDehn LLP were lead U.S. counsel to Channel Four Television Corporation in this case. Providing crucial and cost-effective legal research and drafting were Padmavathi Shanthamurthy, Vidya Devaiah, Preethi Venkataramu, Ashish Kumar, and Sanjay Bhatia, U.S. law-trained Indian legal professionals at SDD Global Solutions Pvt Ltd. in Mysore, India.