INDIAN LEGAL TEAM WINS L.A. COURT BATTLE FOR "ALI G"

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

By Michael Cleaver and Russell Smith

In 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 comedy routine. 

 The plaintiff, who sued as “Jane Doe,” claimed that Cohen used her name in a comedy “interview” by “Ali G” with the historian and author, Gore Vidal, during the course of the television program “Da Ali G Show.”  In the interview, the fictional “Ali G” asked Mr. Vidal why there is any point in amending the U.S. Constitution, since he (Ali G) once had a girlfriend (the plaintiff) who was constantly “amending herself,” but to no avail.

 Da Ali G Show

 “Da Ali G Show” is a satirical television comedy in which Cohen (a white male from the UK), under the guise of three separate, fictional alter-egos –“Ali G” (a “wannabe” black gangsta-rapper), “Borat” (a witless journalist from Kazakhstan), and “Bruno” (an Austrian gay fascist fashion reporter) – interviews real people, including countless celebrities and other public figures (such as Pat Buchanan, Boutros Boutros-Gali, Newt Gingrich, Dick Thornburgh and Donald Trump).  The “interviews” involve a steady stream of ridiculous statements and questions posed by the respective alter-egos to the interviewees.  Although the television audience is well aware that the interviewer is a fictional persona, the interviewees, at least at the time of the interview, are not.  According to the consent agreements they signed in order to appear on television, they didn’t care. 

 Throughout the program, Cohen never steps out of character, and never appears as himself.  Using his idiotic and buffoonish Ali G persona in particular, Cohen satirizes sexism, racism, homophobia, and what passes for Western “youth culture.” As New York Times columnist Maureen Dowd noted, “[w]ith his white-gangsta-rapper-wannabe persona, Sacha Baron Cohen, a brilliant graduate of Cambridge, sends up the vacuity of the culture.”

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?

 Mr. Vidal laughed, and then responded: “Well, the Constitution has not yet become pregnant.”

 The Plaintiff apparently did not laugh.  Instead, she responded with a libel suit alleging that the above statements falsely suggested that she had a sexual relationship with Cohen, and that, because she has no children, the statements also falsely suggested that she must have had an abortion. 

 The Plaintiff claimed she was damaged by (a) former defendant HBO distributing the allegedly offending episode of the Program at least 21 times across the United States in August of 2004, (b) Channel 4 distributing the episode to Finland in December of 2004, (c) HBO distributing the episode in the U.S. again in 2005, (d) a viewer of the Finnish broadcast posting the offending segment of the episode on YouTube in December of 2006, and (e) the Plaintiff’s public filing of the lawsuit in 2007, which included her full name, and gave rise to a barrage of worldwide, negative publicity concerning the Plaintiff and her claims. 

Summary Judgment

            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.

In 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.”

Moreover, 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.

 India’s Role in Libel Defense

Channel 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.” 

U.S. 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. 

 As Channel 4’s general counsel noted after the decision: “US court actions are extremely costly to run and even where a defendant wins, little if any of their costs are recoverable from the plaintiff. As so often happens in cases like this, the ‘chilling effect’ of the threat of substantial damages and significant legal costs, forces defendants to settle with plaintiffs who have no justifiable claim. However, combining the skills and expertise of US attorneys with US law-trained Indian attorneys has proved to be an innovative and cost-effective way for Channel 4 to fight and win the suit.”

            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.

Comments

[Sundeep Malhotra]

Seems SDD Global Solutions Pvt Ltd. is doing good job indeed!

Hope this trend of Indian LPOs uprising keeps on rising.